Part I - Identities and Interaction

2 Foreign Relations Law As a Bargaining Tool?

Felix Lange

I Introduction

To perceive foreign relations law as a self-standing academic subfield, perspective or theme which enlightens our understanding of the linkages between national and international law is a rather novel phenomenon.¹ In most jurisdictions an academic tradition of foreign relations law as a separate field or theme does not exist. Issues of foreign relations law such as the separation of powers in foreign affairs or the integration of international law into the domestic order are often either discussed in treatises of constitutional or international law, or in both. For instance, not only the Oxford Handbook of the Indian Constitution contains a chapter on the case law of the Indian Supreme Court dealing with the status of international law in the Indian legal system² but also the edited volume Comparative International Law includes a contribution addressing how the Indian Supreme Court integrates human rights law into the domestic order.³ Moreover, if, like in the United States, a foreign relations law tradition exists, the norms of the US Constitution and the case law of the Supreme Court which relate to foreign affairs are often taught and analyzed by scholars who teach and write on international and domestic (constitutional) law.⁴ As the editors of this volume rightly emphasize, foreign relations law thus concerns the relationship between domestic (constitutional) law and international law. The hybrid character of foreign relations law invites us to ponder about the repercussions of domestic (constitutional) law for international law and vice versa.⁵

This contribution attempts to shed some light onto the issue of the place of foreign relations law and the bridges and boundaries it builds between constitutional and international law. It starts by studying the emergence of foreign relations law in various jurisdictions and its relationship to domestic (constitutional) law and international law. It argues that foreign relations law is best understood as a subfield or theme of domestic (constitutional) law with close linkages to international law.

But seeing the locus of foreign relations law in the domestic is only the starting point for a broader engagement with its effects on international law and vice versa. In general, the separation of foreign relations law from international law should not make us blind for studying the interlinkages and impacts of the respective fields on each other. For instance, the study of the informal and contextual influence of foreign relations law on international treaty-making seems to be worthwhile.

Therefore, this contribution analyzes one aspect of the informal use of foreign relations law in relation to international law: it discusses the possibility to rely on domestic foreign relations law as a bargaining tool in international negotiations to persuade the other negotiating parties of one’s own perspective. Domestic foreign relations law might shape the negotiation process and limit possible outcomes if one actor successfully flags a certain negotiating outcome as leading to nonparticipation because of domestic veto powers. If the historic role of veto powers in treaty-making makes the threat of nonparticipation credible, the other negotiating parties might be tempted to give in and sign onto the other side’s negotiating goal.

In particular, I study the evolution of the bargaining position of the United States in relation to the Paris Agreement on climate change and its connection to US foreign relations law. In the debate about the Paris Agreement, the Obama administration highlighted that the domestic constitutional rules on treaty-making call for negotiating a treaty with nonbinding provisions on climate change mitigation. Notably, the US delegation successfully stopped the adoption of a pre-negotiated final document containing language which sounded like binding commitments on climate mitigation by pointing to its foreign relations law. As I demonstrate, US foreign relations law indeed places considerable constraints on executive treaty-making without involvement of the Senate or Congress. The history of the discussions on the United Nations Framework Convention on Climate Change and the Kyoto Protocol shows that various actors regarded Senate involvement for treaties concerning climate change mitigation as obligatory.⁶ However, it is also important to be aware of the ambivalence of the foreign relations law on the matter and the restraint of US courts to judicialize foreign affairs. Arguably, the Obama administration did not exhaust interpretations of its foreign relations law allowing more binding-sounding language on climate mitigation because the negotiating team itself was not eager to commit to binding language.⁷ US negotiators also favored nonbinding commitments on climate mitigation for developed countries because they intended to prevent a scheme differentiating between developed and developing countries.⁸ In this sense, US foreign relations law became the bargaining tool which limited the space of potential negotiating outcomes on the international plane and allowed the Obama administration to achieve the result it wanted. Even though foreign relations law can unfold this power only under very specific circumstances, the example demonstrates the potential effects of domestic constitutional design for the international legal structure.

II The Emergence of Foreign Relations Law and its Relationship to International Law

The design of the constitutional rules addressing foreign affairs has always been an important issue during the constitution-making processes in constitutional democracies. Building on enlightenment philosophers like John Locke,⁹ the founding fathers of the US Constitution debated how to allocate the competences between the branches of government in foreign affairs and the role of international treaty and customary law in the domestic legal order.¹⁰ In the British public law tradition, William Blackstone and Albert Venn Dicey contributed to an understanding of foreign affairs law as an area of executive dominance and discretion by highlighting the powers of the Crown.¹¹ Also, in the constitution-making processes of the nineteenth century, the emerging constitutional democracies opted for different models concerning the allocation of the foreign affairs power.¹²

The legal sciences, however, did not start to become systematically interested in issues of foreign relations law until the early twentieth century. In the United States, Quincy Wright’s 1922 study on The Control of American Foreign Relations set the tone for the US debate on the constitutional implications for foreign affairs.¹³ His discussion of the enforcement of international law in domestic courts and the powers of the President and Congress on international treaty-making and implementation, is still today regarded as an important predecessor of the contemporary debate in the United States.¹⁴ One year later, Ernst Wolgast published his in-depth analysis of the ‘Foreign Power’ (Auswärtige Gewalt) of the German Reich addressing similar issues for the Weimar constitutional system.¹⁵

After the Second World War, the topic continued to stay relevant in particular in the US debate. During the 1940s, the increasing international engagement of the United States led to the emergence of congressional-executive agreements in constitutional practice causing a scholarly boom on the topic.¹⁶ The term ‘foreign relations law’ developed to distinguish a separate field of study from international law and constitutional law stricto sensu analyzing the separation of powers in foreign affairs, the integration of international law in the US legal system and the international law applicable to the United States.¹⁷ In 1965, the American Law Institute published the Restatement (Second) of Foreign Relations Law of the United States with a focus on these topics and thus contributed to the successful establishment of the theme as a disparate scholarly field.¹⁸ Around thirty years later, the scholarly consensus on issues of foreign affairs which had been enshrined in the 1987 Restatement (Third) of Foreign Relations Law of the United States with Louis Henkin as Chief Rapporteur was put into question.¹⁹ Some scholars challenged assumptions about the internationalization of the US legal system and triggered a flood of positive and hostile reactions in scholarship.²⁰

In other constitutional democracies, the relationship between the constitution and the international legal order has also been a popular topic of academic debates. For instance, in 1954, Western German public law professors debated the division of competences between parliament and the executive in foreign affairs as well as between the federal and state level shaping the constitutional practice of the young German Federal Republic for years to come.²¹ Moreover, Klaus Vogel’s 1964 programmatic essay on the internationalization of German constitutional law became a common reference point for future generations of scholars.²² The recent establishment of Staatsrecht III as a distinct class of the constitutional law curriculum then triggered a substantial increase in publications on the topic.²³ In South Africa, the constitution-making in the 1990s spurred a debate about the relationship of the post-apartheid Constitution with international law.²⁴ The theme is frequently taken up in reaction to international law-friendly judgments of South African courts.²⁵ Also, the foreign relations law of supranational entities like the European Union now receives academic attention.²⁶ Even though the understanding that foreign relations law is a separate field in the legal sciences is rather the exception than the rule in constitutional democracies, scholarly attention has clearly been growing.

Furthermore, a recent comparative turn sparked the interest in foreign relations law in various jurisdictions. In 2011, Campbell McLachlan’s study of foreign relations law in various Commonwealth states became a key building block for the scholarly field or theme.²⁷ Also, the various chapters on manifold jurisdiction in the 2019 Oxford Handbook on Comparative Foreign Relations Law illustrate the rising scholarly interest.²⁸

The maturation of foreign relations law as a disparate scholarly field or theme is accompanied by debates about its definition, place and function. In particular, various authors address the tricky relationship of foreign relations law to constitutional law and international law. The editor of the Oxford Handbook, Curtis Bradley, defines foreign relations law as ‘the domestic law of each nation that governs how that nation interacts with the rest of the world’.²⁹ For him, the theme encompasses the allocation of authority on the vertical and horizontal level of a state and the role of international law before domestic courts, but not ‘“pure” questions’ of international law.³⁰ Similarly, in the Max Planck Encyclopedia of Comparative Constitutional Law, Helmut Aust regards the separation of powers in foreign affairs, the rights of the individual when foreign relations are affected and the relationship between foreign affairs and democracy as key themes of foreign affairs law in the constitutional state.³¹ Thomas Giegerich stresses in his contribution for the Max Planck Encyclopedia of Public International Law that ‘[a]lthough the foreign relations law forms that part of internal law which is most closely interlinked with international law, it remains internal law’. For him, ‘there is not one worldwide foreign relations law but there are many, however, that share certain common principles’.³² Moreover, when foreign relations law is distinguished from related subfields like comparative international law, its domestic dimension is emphasized. As Anthea Roberts, Paul Stephan, Pierre-Hugues Verdier and Mila Versteeg stress, comparative foreign relations law examines ‘the rules, institutions, and practices in different states with respect to how that state conducts relations with foreign states and other actors’, whereas comparative international law assesses the different national and regional approaches to and applications of international law.³³

Despite the grounding in domestic (constitutional) law, foreign relations law scholars are well aware of the links to international law. For some, international law is even part of foreign affairs law. In the US tradition, treatises of foreign relations law often contain chapters on the international legal rules relevant for the United States. According to Restatement the Third, foreign relations law draws its sources both from international law as applicable to the relevant state and national law, in particular constitutional law, governing that state’s foreign relations.³⁴ Therefore, Louis Henkin situates the subject of foreign affairs law as a scholarly endeavor ‘somewhere between the constitutional lawyer and the international lawyer’.³⁵ Similarly, Campbell McLachlan emphasizes that foreign relations law sits at the ‘interface of international and municipal law’ allocating jurisdiction between domestic or international courts and determining the division of competences between the three branches.³⁶

The connections between international law and foreign relations law are manifold indeed, even if one assumes that foreign relations law is a subfield of domestic (constitutional) law in the respective jurisdictions and separate from international law. Doctrinal conjunctions as in article 46 VCLT³⁷ and as in the opening clauses of many constitutions (for instance article 51 c of the Indian Constitution; section 39 (1b) of the South African Constitution) are evidence for the close interlinkages. In some sense, foreign relations law is the bridge builder between domestic law and international law.

III Foreign Relations Law As a Bargaining Tool?

Besides these doctrinal interconnections, an indirect and informal nexus between foreign relations law and international law exists. For instance, the domestic rules on treaty-making may shape how certain states negotiate international treaties and may have a substantial impact on the substantive content of a treaty. These contextual and informal linkages between foreign relations law and international law become evident when foreign relations law is used as a bargaining tool in international negotiations.

Theoretically, the possible usage of foreign relations law as a bargaining tool has been alluded to already at the end of the 1980s. The political scientist Robert Putnam is well-known for his two-level game theory in which he assesses the impact of domestic politics on international negotiations.³⁸ On the basis of a study of G7 summits, Putnam demonstrates how domestic interest groups affect the positions of the respective national governments in negotiations on the international level.³⁹ In passing, Putnam suggests a promising negotiating strategy which links domestic politics with the international negotiations. A delegation should try to convince the other negotiating parties that its suggested draft will certainly be ratified in its own national legal system while a draft more favorable to the opponent will fail in the domestic ratification procedure.⁴⁰ Putnam thus theoretically preconceives how foreign relations law could be used as a bargaining tool in international relations. A government should point to the risk of a potential veto from a domestic actor on an agreement which is in the general interest of all negotiating partners. If the government can make a credible claim that its domestic laws enable an actor to block the ratification and that the domestic actor is skeptical of the treaty arrangement, the other negotiating parties interested in collective participation in the treaty regime might accept the government’s suggested draft as the only possible compromise.

Empirically, the impact of foreign relations law on international treaty negotiations is however not obvious. Because article 46 VCLT has never been successfully pleaded before an international court,⁴¹ the domestic constitutional design does not seem to have major relevance for the legality of a treaty on the international level. Moreover, even if one assumes that negotiating partners are concerned about the prospects of ratification by the respective opposite side, it is hard to assess the credibility of the argument about foreign relations law. Competing accounts about the exact contours of a domestic foreign relations law in a particular country make the assessment of limits for domestic ratification rather challenging.⁴² Also, one has to touch unstable ground by making assumptions about future actions in the domestic ratification processes and envisaging a certain behavior by parliamentary veto players.

Nonetheless, this contribution argues that there exists some evidence that Putnam’s envisioned strategy played a role in the context of the Paris climate change negotiations. The Obama administration successfully talked other states into adopting the US negotiating position on nonbinding commitments for climate change mitigation by pointing to its foreign relations law and potential veto players in the domestic context. Given the history of the UNFCCC and Kyoto negotiations, the Obama administration’s argument about the necessity of senatorial involvement for subscribing to binding mitigation commitments was credible. However, this contribution also points to the ambivalences of US foreign relations law and highlights the reluctance of the US courts to weigh into foreign affairs. Against this background, the Obama administration arguably opted for a risk averse strategy when it comes to the nonbinding legal character of climate mitigation commitments because this was in line with another US negotiating goal to prevent a scheme which differentiates between developed and developing countries.

A Treaty-Making under the US Constitution

The foreign relations law of the United States establishes high hurdles for treaty participation. The US Constitution of 1789 heavily involves the Senate in the treaty-making process entailing a ‘threshold [for approval of a treaty] higher than that in nearly all other advanced industrial democracies’.⁴³ According to US Constitution, Article II § 2, Clause 2, the President has the power to conclude treaties with the ‘Advice and Consent of the Senate’ as long as ‘two thirds of the Senators present concur’. The Founding Fathers bestowed the numerically smaller, expectedly more secretive Senate instead of the House of Representatives with this competence, also because Southern states regarded the senatorial blocking minority as safeguarding the US monopoly on navigation rights on the Mississippi River.⁴⁴ On the basis of the article II procedure, administration officials usually negotiate the treaty and then ask the Senate for approval of the negotiated document.⁴⁵ Some of the most important international agreements like the United Nations Charter, the NATO defence agreement, the Geneva Conventions, the Nuclear Non-Proliferation Treaty and a few human rights conventions have been concluded in this way.⁴⁶

There exist various examples of international treaties which did not receive the consent of the Senate. Famously, the Senate did not support President Woodrow Wilson’s attempt to join the Versailles Treaty after the First World War.⁴⁷ Moreover, even though the Clinton and Obama administrations endorsed human rights treaties like the Convention on the Rights of the Child, the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of Disabled People, none of these treaties received the required senatorial consent.⁴⁸ These experiences of domestic ratification failure make the threat of nonratification credible. It is quite realistic that an administration will not receive the required two-thirds majority in the Senate which has been called the ‘graveyard’⁴⁹ or ‘cold storage’⁵⁰ for international treaties.

However, according to US constitutional practice not every agreement negotiated at the international plane needs to follow the article II procedure in order to be ratified. Since the 1940s, so-called congressional-executive agreements emerged allowing for treaty participation of the United States without requiring the high threshold in the Senate. For such congressional-executive agreements, the President needs advance authorization or subsequent approval of a simple majority in Congress.⁵¹ A rising number of congressional-executive agreements have been completed in issue areas like trade, commerce and finance.⁵² Moreover, sole executive agreements, which concern more technical issues, can be concluded by the President alone. Even though the US Constitution does not explicitly refer to executive agreements,⁵³ the Supreme Court stated in dicta that the President has ‘the power to make such international agreements as do not constitute treaties in the constitutional sense’⁵⁴ and implicitly held such agreements to be valid.⁵⁵ According to the Case-Zablocki Act, the Secretary of State needs to submit every international agreement except for article II treaties within sixty days to Congress.⁵⁶

How to distinguish between article II treaties, congressional-executive agreements and executive agreements remains a controversial question. The position enshrined in Restatement the Third ‘[t]he prevailing view is that the Congressional-Executive agreement may be used as an alternative to the treaty method in every instance’⁵⁷ found some support, but has also been challenged by various authors.⁵⁸ The State Department relies on the Circular 175 procedure evaluating the agreement’s impact on the US as a whole and on state laws, past US and international practice in relation to similar agreements, the preference of Congress, the duration as well as the desired formal character and expediency of the agreement.⁵⁹ These criteria are not entirely clear-cut, lend themselves to interpretation and thus allow for some political discretion for each administration. More importantly, the US Supreme Court has been rather reluctant to adjudicate in foreign relations leaving it to Congress and the President to solve the dispute politically. For instance, the Court denied granting certiorari to the case challenging the conclusion of NAFTA as a congressional-executive agreement after the US Court of Appeals of the 11th circuit had dismissed the case as nonjusticiable on the basis of the political question doctrine.⁶⁰ Therefore, US courts did not develop strict limits on how to categorize certain agreements negotiated at the international level. This means that as long as there is no adjudicator to check the classification of the administration, the respective administrations possess some leeway on whether a certain agreement is an article II treaty, a congressional-executive agreement or a sole executive agreement.

B The Obama Administration and Nonbindingness of Climate Mitigation Commitments

The classifications of different types of agreements had a strong impact on the US position on the Paris Agreement. From the beginning of the negotiations, the administration posited that it intended an agreement with nonbinding language on climate change mitigation. More than a year before COP 21 in Paris, Todd Stern, the chief US negotiator of the Paris Agreement, stressed that ‘the new agreement will be a legally binding one in at least some respects, but doesn’t specify which ones’. He highlighted that the US supported a proposal by New Zealand according to which ‘there would be a legally binding obligation to submit a “schedule” for reducing emissions, plus various legally binding provisions for accounting, reporting, review, periodic updating of the schedules, etc. But the content of the schedule itself would not be legally binding at an international level’.⁶¹ One month prior to the Paris meeting, Secretary of State John Kerry told the Financial Times that the Paris climate negotiations would not lead to a treaty legally requiring reductions of carbon emissions and would be different from the Kyoto Protocol.⁶² Moreover, when the US submitted its intended nationally determined contributions to demonstrate its commitment to climate change mitigation before COP 21 in Paris, it did not refer to these contributions as being legally binding.⁶³ The US delegation even explicitly rejected proposals by the European Union and small island states calling for the legal bindingness of nationally determined contributions. According to US negotiators, this would prevent high participation with and ambition within the agreement.⁶⁴

The US delegation was even willing to risk the adoption of the negotiated document over the issue of the legal character of climate change mitigation commitments. Article 4 (4) of the final circulating draft held that ‘[d]eveloped country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts, and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of different national circumstances.’⁶⁵ Article 4 (4) thus clearly distinguished between the obligations of developed and developing countries.

This version of the Paris Agreement was not acceptable for the US delegation. John Kerry threatened that the US would not support the deal if the ‘shall’ would not be changed to ‘should’.⁶⁶ According to the US delegation, the wording was smuggled into the final draft at the last minute despite the US rejection of such proposals in earlier drafts.⁶⁷ In contrast, the delegations of some developing countries claimed that the ‘shall’ was the agreed language and the US challenge represented an unfair last minute move to better the US position crossing a red line on differentiation between developing and developed countries.⁶⁸ In any case, the French Presidency around Laurent Fabius yielded to the American concerns in order to save the adoption of the Paris Agreement. The Secretariat declared the ‘shall’ to stem from a typographical error. States thus could vote on the basis of a corrected final version incorporating the ‘should’ and no new negotiating around delaying the adoption had to be opened.⁶⁹

According to the Obama administration, the key reason for why the US insisted on (re-)introducing the nonbinding ‘should’ into article 4 (4) of the Paris Agreement was US foreign relations law. In this view, the wording of article 4 (4) determined which actors had to be involved in the treaty-making process on the domestic level. After the adoption of the Paris Agreement, Kerry linked the drafting of article 4 (4) to the treaty-making procedure at home. In a press release, he celebrated having ‘a binding agreement with respect to transparency and not having binding targets with respect to emissions or finance’ as the achievement of key US negotiating goals. Otherwise ‘a different kind of agreement’ would have been necessary.⁷⁰ Kerry also emphasized that by correcting the perceived mistake in relation to the drafting of article 4 (4), the US ‘kept faith with our own negotiating standards and what we promised to Congress and the American people’.⁷¹ In an interview, Kerry adopted the argument of a US senator that ‘this [agreement] doesn’t need to be approved by the Congress because it doesn’t have mandatory targets for reduction, and it doesn’t have an enforcement-compliance mechanism’.⁷² Other senior administration officials became even more explicit about the link with US foreign relations law. In a background briefing on the Paris Agreement, officials of the State Department stressed that ‘the notion of the targets not being binding was really a fundamental part of our approach from early on’ because only such an agreement does not need to be submitted to the Senate.⁷³ According to press reports, US diplomats were confident that the Senate did not need to be involved because the targets are nonbinding and ‘[t]he elements that are binding are consistent with already approved previous agreements’.⁷⁴ In this reading, only by replacing the ‘shall’ with the ‘should’, the Senate did not have to be involved in the treaty-making process.

Moreover, the US negotiators successfully inserted the foreign relations law argument in the international debate and thus limited the potential outcome of the negotiations. Some months before COP 21, French Minister of Foreign Affairs Laurent Fabius stated in a discussion with African delegates at UN climate talks that ‘we know the politics in the US. Whether we like it or not, if it comes to the Congress, they will refuse’. Fabius added that ‘[w]e must find a formula which is valuable for everybody and valuable for the US without going to the Congress’.⁷⁵ In the run-up to the final negotiations in Paris, EU Climate Commissioner Miguel Arias Cañete stressed that ‘[w]e need the United States on board, and we have to find a solution. … We understand the concerns they have because of the political situation they have in the Congress’.⁷⁶ Also in the context of the language on article 4 (4) Paris Agreement, the foreign relations law argument was crucial. According to the spokesperson for the Like-Minded Developing Countries, the EU approached the Group of Like-Minded Developing Countries and lobbied for acceptance of the last minute change citing US concerns about the involvement of the US Congress.⁷⁷ The EU apparently internalized the US foreign relations law argument and relied on it in order to keep the US in the agreement. According to some observers, the US negotiators thereby made ‘the world accept the domestic constraints in the United States as a feature of international climate talks’.⁷⁸

C Between Real Risks and Bargaining Tool

But how plausible was the argument of the Obama administration? Was the US negotiating position determined by domestic constraints?

It is no question that the involvement of the Senate in the treaty-making process would have placed a hurdle on the ratification of the Paris Agreement which could hardly be overcome. Since the ratification of the United Nations Framework Convention on Climate Change, the Senate had taken a skeptical position towards committing to more assertive climate mitigation obligations on the international level. While the Clinton administration negotiated the Kyoto Protocol, the Senate adopted the (nonbinding) Byrd-Hagel Resolution. With ninety-five to zero votes, the senators emphasized that ‘the United States should not be a signatory to any protocol which would (A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol also mandates new specific scheduled commitment for Developing Country Parties within the same compliance period, or (B) result in serious harm to the economy of the United States’.⁷⁹ By unanimously ruling out senatorial support for an agreement which differentiated in its legal bindingness for targets on greenhouse gas emission reductions between developed and developing countries, the senators put considerable pressure on the negotiating position of the administration. When after an intervention of Vice-President Al Gore the Clinton administration accepted a differentiation scheme between developed and developing countries,⁸⁰ it was obvious that the chances for passing the domestic treaty-making process were slim. It was thus no surprise that the Clinton administration did not submit the Kyoto Protocol to the Senate after signing the protocol in November 1998.⁸¹ The Senate was regarded as the dead end of the Kyoto Protocol.

In relation to the Paris Agreement, the chances for the acceptance of a binding mitigation scheme did not look much brighter. Especially after the Republican successes at the midterm elections of 2014, Republican majorities in the Senate and the House of Representatives signalled that they would hardly support any policy initiatives of the Democratic President before the upcoming presidential elections. While the Obama administration was negotiating the Paris Agreement, the House and Senate adopted two resolutions which disputed the competences of the Environmental Protection Agency to regulate climate change emissions under the Clean Air Act and blocked the legal basis for such regulations.⁸² Republican Senator James M. Inhofe declared that the ‘message could not be more clear that Republicans and Democrats in both the U.S. Senate and U.S. House do not support the president’s climate agenda, and the international community should take note’.⁸³ Only a presidential veto in December 2015 against this resolution kept the door open for implementation of international commitments on climate change mitigation at the domestic level.⁸⁴

Because of these voices and the history since the conclusion of the UNFCCC, the Obama administration knew that getting a climate treaty through the Senate was highly unrealistic. A key goal of the US delegation during the Paris climate change treaty negotiations was to ensure that the President would be able to bind the United States without seeking approval from the Senate or from Congress. Concluding the treaty as a sole executive agreement seemed to be the only promising way forward.

Moreover, a plausible argument can be made that binding commitments on climate change mitigation might have made involvement of the Senate necessary. Already during the domestic discussions on Senate approval of the UNFCCC in 1992, the domestic constitutional procedure for adopting future protocols had been discussed. In an answer to a question by the Senate Foreign Relations Committee, the Bush I administration stated that the article II procedure was needed, if a protocol adopting a targets and timetables scheme was negotiated and signed by the United States.⁸⁵ The Senate Foreign Relations Committee also expressed its view that the introduction of legally binding emission targets would require the Senate’s advice and consent.⁸⁶ Accordingly, during the debate on the Kyoto Protocol with its binding scheme on targets and timetable, policy makers generally expected that senatorial advice and consent was a precondition for US ratification.

Therefore, US negotiators carefully tried to avoid resemblance with the Kyoto Protocol during the negotiations for a new agreement under the UNFCCC. In the context of the negotiations on the Copenhagen Accord, the US delegation suggested to use the term ‘implementing agreement’ for the new arrangement⁸⁷ and was successful in convincing its negotiating partners to drop the term ‘protocol’.⁸⁸ Moreover, the Obama administration pushed against incorporating new financial commitments or legally binding emission targets in order to avoid involvement of the US Congress.⁸⁹

Also, the domestic opposition was convinced that climate change mitigation obligations implied senatorial involvement, regardless of a legal or only political bindingness. In the run-up to the Paris negotiations, the Senate adopted a resolution expressing the sense of Congress that ‘any agreement adopted at COP 21 containing targets and timetables, whether deemed “legally binding” or not, must be submitted to the Senate for advice and consent pursuant to Article II, section 2 of the Constitution.’⁹⁰ In reaction to the adoption of the Paris Agreement, Jim Inhofe emphasized that ‘Senate leadership has already been outspoken in its positions that the United States is not legally bound to any agreement setting emissions targets or any financial commitment to it without approval by Congress’.⁹¹

But was foreign relations law so clear on the matter in particular when it comes to the wording of article 4 (4) Paris Agreement? Would a text stating that ‘[d]eveloped country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets’ require the involvement of Congress?

Some observers like Dan Bodansky tend to adopt the argument of the Obama administration and put forward that ‘arguably’ the phrasing ‘shall’ would have made ‘Senate or Congressional approval … for US participation’ necessary.⁹² However, as the ‘arguably’ signals, Bodansky is cautious not to present this legal position as the only possible view on the matter. Moreover, others have been more skeptical of the Obama administration’s argument. For instance, before the conclusion of the Paris Agreement, David Wirth suggested that existing domestic federal laws and regulations allow international legally binding commitments on emissions reductions. With reference to executive authority under the Clean Air Act and the precedent of the US signature of the Minamata Convention on Mercury, he put forward that ‘neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States becoming party to internationally binding mitigation commitments’.⁹³ After the conclusion of the Paris Agreement, Wirth claimed that there is ‘some – and perhaps considerable – room to argue’ that enough domestic legal authority existed for subscribing to the ‘shall’ in article 4 (4) of the Paris Agreement.⁹⁴ In particular, Wirth points to the ambiguous phrasing of the whole article 4 (4) of the Paris Agreement when it comes to legal bindingness (inter alia the wording ‘undertaking’ meaning to begin something or promise something).⁹⁵

Even if one does not subscribe to this position, the scholarly controversy demonstrates that US foreign relations law is not definite on that matter. Consequently, the question arises who decides on the limits of the foreign affairs power. In contrast to other jurisdictions, the courts in the United States are known for not weighing in on matters of foreign affairs. Despite some debate about the ‘normalization of foreign affairs’ in the United States,⁹⁶ the political question doctrine still is the law on the books, in particular in crucial matters of the separation of powers. As mentioned above, the Supreme Court did not hold hearing on a case concerning the distinction between article II treaties and congressional-executive agreements.⁹⁷ Moreover, the Supreme Court did also not decide on the merits of a case concerning the competences for the withdrawal from article II treaties.⁹⁸ Therefore, it is by no means certain that a US court would take up a legal challenge of the Paris Agreement containing the ‘shall’ on climate mitigation. It is telling that, despite some claims that the current Paris Agreement with the ‘should’ in article 4 (4) Paris Agreement violates US Constitution, Article II Section 2, Clause 2,⁹⁹ the matter is (as far as I can see) not litigated before courts.

Moreover, the Obama administration’s rejection of the ‘shall’ was not only due to its foreign relations law. The US delegation also intended to prevent a scheme which differentiated between developed and developing countries. Already during the discussions about the Kyoto Protocol, many actors in the United States had dismissed asymmetrical obligations on climate mitigation between developed and developing countries pointing to potential detrimental effects for the US economy.¹⁰⁰ For developing countries, differentiation between binding mitigation commitments for developed countries and nonbinding rules for developing countries in the Kyoto Protocol had been a key objective expressing the principle of ‘common but differentiated responsibilities’ in the climate change regime.¹⁰¹ However, the US delegation was no longer willing to accept this. In the Paris negotiations, the rejection of a differentiated regime similar to the Kyoto Protocol was a key negotiating position of the US delegation. In October 2014, Todd Stern stressed that an inclusive agreement with broad participation was the main goal of the United States.¹⁰² In the context of the debate about article 4 (4) Paris Agreement, the Obama administration was concerned that the ‘shall’ created a distinction between binding obligations for developed countries and nonbinding obligations for developing countries.¹⁰³ Accordingly, after the adoption of the agreement, the Obama administration celebrated that the agreement did not differentiate in such a way.¹⁰⁴ Besides foreign relations law, the US negotiating team also had its own interest in nondifferentiation between all participants in the regime in mind.

IV Conclusion

This contribution demonstrates that under specific circumstances, domestic foreign relations law might have a substantial impact on international negotiations by narrowing the space for achievable outcomes.

In the international discussions on the Paris Agreement, the US treaty-making procedure and potential veto players on the domestic level were the elephant in the room. Because the negotiating partners of the US feared that they would not get the United States on board if the Senate or Congress were involved in the domestic decision-making process, they accepted the Obama administration’s insistence on nonbinding commitments for climate change mitigation. This does not mean that the Obama administration tricked its negotiating partners when referring to domestic constraints as an argument for replacing the ‘shall’ in article 4 (4) of the Paris Agreement with the ‘should’. Given the history of nonratification of international climate treaties in the United States and the debate about binding commitments in the context of the UNFCCC, the necessity of congressional involvement for an agreement containing binding targets and timetables is plausible. Also, the risk of nonratification by the Senate and Congress was credible because of the Republican majorities in the parliamentary bodies.

However, it is important to point to the ambiguity of US foreign relations law on the matter and the reluctance of the US Supreme Court to judicialize foreign affairs. It seems not very likely that US courts would have decided on the treaty-making process in relation to the Paris Agreement even if the final version contained the ‘shall’ in article 4 (4). The Obama administration arguably opted for a risk-averse strategy when insisting on incorporating the ‘should’ in article 4 (4) of the Paris Agreement.

A potential reason for this strategy was that the Obama administration was interested in nonbinding commitments on climate change mitigation itself. Because the administration regarded equal treatment of developed and developing countries as a key negotiating goal, the US negotiators were not willing to accept a phrasing which distinguishes between a ‘shall’ for developed countries and a ‘should’ for developing countries. In this sense, foreign relations law provided a welcome argument as a bargaining tool to convince the negotiating partners to adopt the US position.

As this example shows, the potential use of foreign relations law as a bargaining tool is limited to very specific circumstances. It seems that a state can rely on its foreign relations law as a bargaining tool if two conditions are fulfilled. First, the participation of the state in a multilateral treaty is in the interest of all other potential treaty parties because the treaty enshrines a goal which can only be achieved in a cooperative spirit. Second, the state needs to credibly claim that a veto power in its domestic setting will prevent the ratification of the treaty if the treaty does not contain provisions with the preferred outcome for the state.

The first criterion is more likely to apply to powerful states than to weaker states. Other parties probably are more interested in having China, India and the US on board as partners in a multilateral treaty regime than other small states. This is particularly true when the treaty addresses an issue to which bigger states contribute more than others. For instance, the US seems to be in a beneficial negotiating position in the climate change context because the participation of the world’s second strongest emitter seems to be highly important for the success of the treaty’s objectives.

The second criterion limits the use of foreign relations law as a bargaining tool to actors with a certain reputation. Given that the US Senate is widely perceived as the ‘graveyard’ or ‘cold storage’ for international treaties, the US seems to be the most likely actor to apply this negotiating strategy. In contrast, most states lack a veto player as strong as the Senate with a long history of nonratification of international treaties which makes the claim of potential nonratification credible. For instance, in India the executive alone decides which treaties it will conclude without involving parliament. In parliamentary systems like South Africa or Germany, the legislature most of the time supports the foreign policy approach of the government and approves negotiated treaties without much debate. Thus, the National Assembly and Bundestag are highly unlikely to act as a veto power.

However, also other states might point to constitutional constraints when they push for enshrining a certain rule in a treaty. It is telling that in the context of debates about how to respond to the Eurozone crisis in 2012, the head of the International Monetary Fund, Christine Lagarde, threatened to leave the room if she would hear ‘Bundesverfassungsgericht’ one more time.¹⁰⁵ Apparently, Lagarde dismissed the argument by sceptics of the European rescue policies that a potential judgment by the German Constitutional Court might constrain the space for decision-making. Even though this example does not refer to the negotiation strategy of a state in international treaty negotiations, it demonstrates that constitutional limits might well become an argument in supra- and international debates, also outside of the US context.

Be it as it may, the Trump administration’s actions in relation to the Paris Agreement are a far cry from using foreign relations law in international negotiations. The Trump administration signalled its intention to withdraw from the Paris Agreement in June 2017 and set in motion the year-long exiting process in November 2019.¹⁰⁶ Instead of influencing international negotiations with reference to domestic constraints, the Trump administration counts on its oil- and coal-friendly ‘America First’ policy.

However, it is interesting to see that the debate about the contours of foreign relations law also had repercussions for the withdrawal decision. When President Donald Trump renounced the Paris Agreement, he referred to ‘serious legal and constitutional issues’ since ‘[f]oreign leaders in Europe, Asia, and across the world should not have more to say with respect to the U.S. economy than our own citizens and their elected representatives’ alluding to the noninvolvement of Congress.¹⁰⁷ Even though every international treaty regime might, in the view of nationalists, introduce potential elements of influence of ‘foreign’ actors and raise ‘constitutional issues’, this might be particularly worrying if Congress has not been involved in the treaty-making in the first place. Moreover, the Obama administration’s decision not to involve Congress also influenced the withdrawal decision more indirectly. Trump’s decision to leave without involving Congress was hardly questioned on foreign relations law grounds. Since the Paris Agreement had been concluded as an executive agreement, most scholars agree that the executive alone could withdraw from the agreement.¹⁰⁸ While US foreign relations law shaped the outcome of the Paris climate negotiations by limiting the space of potential outcomes, it did not constrain the executive decision-making process on the domestic level in the context of the withdrawal.

3 International Foreign Relations Law Executive Authority in Entering and Exiting Treaties

Edward T. Swaine

The nascent field of comparative foreign relations law is generating considerable, and understandable, excitement, including for the world of treaties.¹ Comparativism offers different systems the opportunity to learn from one another, and treaties offer a particularly interesting classroom. States parties are to an extent allies in a common cause, and profit mutually from a better understanding of domestic treaty-making and its constraints. Yet they are simultaneously rivals that seek to minimize the strategic opportunities afforded others – including under the agreements binding them. It is unsurprising, given these conflicting impulses, that state systems show variety in how they tackle even these common problems.

What may be more surprising is international law’s apparent agnosticism. Treaties depend on foreign relations law: the latter, after all, is tasked not only with establishing domestic authority to allow states to consent to treaty obligations, but also with establishing the means by which they fulfill the resulting obligations, including through the incorporation of treaties into domestic law. Even so, international law treats structural provisions of domestic constitutions as matters of indifference. Domestic laws, the Permanent Court of International Justice once pronounced, ‘are merely facts’ in relation to international obligations,² and this view remains broadly valid today.³ For reasons suggested in this chapter, domestic foreign relations law is distinguishable, at least where it facilitates international law rather than posing an obstacle to it. Nonetheless, international law seems disposed against deferring to domestic legal systems, and those systems likewise seem biased against inviting external evaluation.

The supposed agnosticism of international law toward foreign relations law seems vaguely implausible – after all, treaties and customary international law foster and monitor the human rights-conferring aspects of domestic legal orders, so it is odd that they would cede everything structural, including the means by which states assume many such obligations – and does not, in any event, mean that it leaves the latter undisturbed. As others have explored, international law creates an arena in which domestic actors assume additional authority. For example, US foreign relations law has permitted the executive branch to assume a capacity for creating and terminating international obligations that has enhanced its institutional advantages over Congress.⁴ Here I draw attention to a related, but materially distinct, phenomenon: how international law – specifically, treaty-law principles reflected in the Vienna Convention on the Law of Treaties (VCLT)⁵ – itself reinforces such tendencies in domestic institutions.⁶ Based on plausible, historically grounded assumptions about how states conduct foreign relations, international law has homogenized foreign relations law relating to the creation and elimination of international treaty obligations – encouraging even those states that possess other constitutional agents to regard executive power as sufficient. I examine ratification (Section I), in which this tendency is fully expressed, and then withdrawal (Section II), in which it is only just emerging.⁷ Such analyses seek to augment a purely comparative approach to foreign relations with a fuller recognition of the influence of international law.⁸

I Ratification

Treaty law long accorded conclusive significance to treaty ratification by executives as an incident of the sovereign power of monarchs – passed along, naturally, to those with full powers to act on the sovereign’s behalf.⁹ This was challenged by two developments. First, beginning by the mid-nineteenth century, a practice emerged in which states adopted constitutional provisions that required legislative approval of treaties. That tendency continues largely unabated today; the subjects encompassed by such provisions have often been expanded, along with the widening scope of treaty-making generally, and there has even been an uptick in supermajority requirements.¹⁰ Second, agreements became more varied and often more informal, resulting in many that arguably did not require approval by traditional, treaty-oriented mechanisms.¹¹ The first development meant that ratification was transformed from a formal and infrequent act by which sovereigns confirmed, as a matter of obligation, that their representatives had been authorized to reach agreement, into a legislative referendum on the underlying merits of the agreement. But the second development meant that ratification might sometimes be dispensed with altogether, and agreements concluded based on signature alone.¹²

The significance for the law of treaties was hotly contested, including as to whether the violation of a state’s constitutional requirement of legislative approval affected whether a nonconforming treaty nonetheless bound the state under international law. Most agreed that domestic law regulated competence to consent to treaties and (often distinctly) governed competence to notify that consent to other states. But the consequences when consent had been notified by a state official competent to that role – notwithstanding the absence of valid consent under domestic law – were unsettled, and occasioned a diverse range of views that flourished from the interwar period through the drafting of the VCLT.¹³

At one end of the spectrum, some suggested that international law treated notification by a competent notifying official as conclusive, either as a matter of dogma or based on a state’s responsibility to make good the acts of its officials. At the other extreme, some regarded constitutional law as being conclusive as to both the domestic and international effectiveness of consent. In the middle were those who regarded constitutional deficiencies as potentially bearing on international efficacy, but varying as to when.¹⁴ The Harvard Research study, after extensive canvassing of publicists, state practice and jurisprudence, decided – almost arbitrarily – to recommend codifying that ‘[a] State is not bound by a treaty made on its behalf by an organ or authority not competent under its law to conclude the treaty’, but that a nonbound state might then be responsible for the reasonable reliance of others on its prior representations.¹⁵ Under this approach, international law deferred to foreign relations law, but ameliorated any adverse effect on other states through a liability rule.

The matter was revisited by the International Law Commission (ILC) in drafting the VCLT. Initially, the ILC’s view was similar to that of Harvard Research: for a treaty to be binding on a state, it had to be adopted ‘in accordance with its constitutional law and practice through an organ competent for that purpose’.¹⁶ Then it reversed course. The ILC’s next proposal stressed state autonomy and self-help: states could always, if they chose, negotiate ratification terms that accommodated domestic processes, seek collateral arrangements, caveat their signatures, qualify full powers or improve disclosures to other states during negotiations.¹⁷ If, despite these options, states behaved internationally in ways that were incompatible with their domestic constitutions, the proposal would be less forgiving. The draft precluded a state from invalidating its consent by invoking the violation of ‘a provision of its internal law regarding competence to conclude treaties’ unless that violation was ‘manifest’.¹⁸ This was later enhanced, in Article 46 of the VCLT, to define what ‘manifest’ meant – signifying a violation that would be ‘objectively evident’ to any state acting normally and in good faith – and to require that the violation also concern ‘a rule of its internal law of fundamental importance’.¹⁹

The ILC took commentary and practice to lean, slightly, in favor of its resolution, and noted support from governments. But its conclusion also had a normative underpinning. In its view, recent treaty-making procedures had ‘done all that can be reasonably demanded … in the way of taking account of each other’s constitutional requirements’. Moreover, in most cases, states invoking the failure to abide by constitutional requirements had other motives for attempting to escape their obligations, and indulging them would threaten the security of treaty obligations.²⁰

The VCLT thus wound up contributing to an important divide. Treaty law ceded to each state ‘the determination of the organs and procedures by which its will to conclude treaties is formed’, concerning itself ‘exclusively with the external manifestations of this will on the international plane’ – meaning that the international-law determination of whether a state’s agent was competent to commit the state largely superseded, for international purposes, any other constitutional delicts. In principle, as the ILC explained, each government ‘had the necessary means of controlling the acts of its representative and of giving effect to any constitutional requirements’, and perhaps making any failings ‘the clear responsibility of the Government of the State concerned’ was more feasible. Any other approach, it suggested, ‘would certainly be regarded as an inadmissible interference’ in another state’s internal affairs, particularly those that followed more dualistic approaches to the relationship between international and domestic law.²¹

This was not the only possible international rule, even by the ILC’s lights. And every approach the ILC considered, not just the one it ultimately adopted, allowed states to work around the default by developing treaty practices that respected both constitutional requirements and the conclusion of treaties.²² Unsurprisingly, though, the default it adopted was urged by governments: in practical terms, the executive representatives of governments, who were also the rule’s beneficiaries. These representatives would retain primary authority over any workarounds that treaty negotiations might yield. More basically, the VCLT rule established an international-law constraint on foreign relations law. A state’s representatives, rather than the state as a whole, would be entrusted (absent extraordinary circumstances) with exclusive responsibility for determining whether a state had complied with its constitutional rules, irrespective of whether those rules vested them with such responsibility or purposefully divided domestic treaty-making authority. Even in the event of manifest violations, it would ordinarily fall to those same representatives to invoke any transgression – one made through themselves or other executive-branch agents – unless the domestic legislature or some third party developed standing to do so.

There was never any illusion that this would permit the vindication of constitutional norms, even those expressed by laws regarding competence to enter into treaties. There had already been well-known instances in which Luxembourg and Argentina had acceded to the League of Nations despite violations of provisions in their constitutions requiring parliamentary approval – though there was room for disagreement as to whether these violations had been ignored as merely domestic matters or whether tacit parliamentary approvals might be surmised from their funding of League participation.²³ The ILC itself emphasized the exceptional nature of manifest violations, and even that other states had never acquiesced in attempts to invoke such violations.²⁴

Subsequent assessments, and subsequent practice, only vindicate its assessment. The governments of major powers have rebuffed criticisms that they ignored the obligation to secure legislative assent, without any apparent effect on their international obligations.²⁵ Most prominently, the International Court of Justice rejected Nigeria’s contention that a bilateral declaration with Cameroon was nonbinding because the Nigerian constitution at the time required approval of its Supreme Military Council; while the provision was of ‘fundamental importance’ under Article 46, it was not sufficiently ‘manifest’, including in part because heads of state could be presumed competent.²⁶ A later judgment was to much the same effect, and made clear that – even though the Somali Parliament had rejected an agreement, making relatively prominent its potential authority under domestic law – that mattered little when the Prime Minister of Somalia failed to question its validity in later interactions on the international plane.²⁷

It is possible that the rise in legislative authority at the national level might shape international expectations and make deviations sufficiently apparent to register as manifest, though the trend has yet to have any such effect; perhaps the nascent project on comparative foreign relations law will even assist by illuminating pertinent commonalities and differences.²⁸ It is unlikely, in any case, that the basic rule will be reconsidered. If anything, parallel developments suggest similar biases toward the creation of international obligations and against means by which they might be subverted. The unilateral acts doctrine, per the ILC’s Guiding Principles of 2006, likewise indicates that while ‘[a] unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so’, necessarily ‘[b]y virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are competent to formulate such declarations’.²⁹

The emerging unilateral acts doctrine seems to be of a piece with the full powers doctrine for treaties and, more broadly, the executive capacity assumed for traditional sources of international law, insofar as it also encourages the stability of international commitments.³⁰ Still, this assignment of responsibility – like treaties, to a limited class of officials, without regard to what a state’s foreign relations law provides – lacks the same compelling need to find an agreeable means of concluding a principal source of international law, and lacks any explicit exception for manifest violations. Interestingly, the Guiding Principles also inhibit the ‘arbitrary’ revocation of such commitments, with potential parallels for treaties.³¹ Some governments were discontent with this exercise, but it seems to have been due primarily to the difficulty of establishing general principles – and, perhaps, the risk that they would be regarded as binding their states unintentionally – and not the risk of making international law by means that were inconsistent with domestic law.³² The basic calculation is unsurprising. A sufficiently deliberate capacity would appeal to the political actors that may make use of it, executive officials, who might have less regard to the loss in authority suffered by others. If consulted, national legislatures might be more inclined to regard the emerging doctrine as creating a new rival to treaty-making by participative means.

II Withdrawal

International law’s attitude toward the domestic law regarding withdrawal from treaties is less concrete – but as a matter of inference, at least as indifferent. The VCLT allows a state to withdraw by consent or in conformity with a treaty’s terms, or if the parties so intended or treaty’s nature so implies.³³ Additional provisions address notice and subsequent withdrawal for cause.³⁴

The ILC, in drafting the VCLT, noted that withdrawal serves as a safeguard when a state’s consent to a treaty violates its constitutional principles.³⁵ Accordingly, ‘a defect in [the state’s] consent to be bound’ – presumably, such as would satisfy Article 46 – is one of the grounds that may be invoked and notified to other states parties.³⁶ But nothing addresses whether there might be any ‘manifest’ or other constitutional violation related to the act of withdrawal itself – that is, addressing whether a state’s invocation of some basis for withdrawal (or comparable act) might itself be impeached on the basis of a constitutional violation.³⁷ The VCLT incorporates notice periods, at least as defaults, presumably for the benefit of other states parties,³⁸ and allows the notifying state to withdraw such notice or instrument before it takes effect – including, one expects, on the basis of a constitutional violation.³⁹ But the practical significance is elusive. The timing in which a state can change its mind is a serious constraint.⁴⁰ In any event, the decision appears confided to the discretion of executive-branch officials, exactly as one might expect.⁴¹ The result, as Hannah Woolaver has observed, is that ‘in contrast to international law powers to join treaties, the authority of the executive to withdraw the state from treaties in Article 67 of the VCLT is, prima facie, absolute in international law, unlimited by any checks that may exist in domestic law’.⁴²

This withdrawal regime now faces challenges reminiscent of those once confronted by ratification. States are slowly retreating from the practice by which the executive is entitled to withdraw unilaterally from treaties, instead adopting new provisions that require parliamentary approval.⁴³ During the same period, multilateral and even bilateral treaty-making has seen a pronounced slowdown,⁴⁴ augmented (at least in the short term) by withdrawals and similar attempts at disengagement.⁴⁵ The result is that formal constitutional revision has been accompanied by high-profile instances in which executive-led attempts at withdrawal, like the United Kingdom’s initial attempts to withdraw from the European Union and South Africa’s (initial?) attempt to withdraw from the International Criminal Court, were slowed by judicial decisions that recognized for the first time parliamentary rights to participate in exit from certain types of treaties.⁴⁶

Despite the evolution of foreign relations law, there is no evident movement to develop international law. As with ratification, international law effectively regards executive determinations, in notifying a state’s will, as exhausting treaty law’s deference to domestic law, leaving any potential legislative role to be enforced solely through a state’s own legal processes. This has clear appeal, both internationally and domestically, in instances where national requirements are as yet uncertain. But where national requirements are well defined, it remains troublingly clear that foreign relations law is not self-enforcing. For a number of actual or potential withdrawals – including those by the United States, a frequent flyer of sorts – justiciability principles are likely to limit the capacity of courts.⁴⁷ Even where courts are willing and ostensibly able, any domestic principle will be difficult to apply prior to a unilateral executive notice taking effect as a matter of international law.

The readiest solution would be to infer an analogous exemption for manifest violations in the withdrawal context to match that for ratification.⁴⁸ However, that is difficult as a matter of treaty interpretation. Article 46 is plainly limited to ‘provisions of internal law regarding competence to conclude treaties’; that heads of government and comparable officials are elsewhere given authority to perform ‘any other act with respect to a treaty’ offers no textual basis for concluding that one of those acts, withdrawal, must also be constrained in the event of manifest violations.⁴⁹ Indications in the travaux préparatoires are mixed or negative.⁵⁰ That state practice did not support any such principle as a matter of customary international law – as Woolaver, a strong but judicious advocate for this interpretation, acknowledges⁵¹ – further undermines any basis for attributing such intention to the states agreeing to the VCLT, and the lack of supportive state practice since suggests that it would be unreasonable to find any grounding in subsequent treaty practice.

To be sure, teleological or policy arguments for comparable treatment are appealing, including that the security of treaty obligations – one of the objectives of Article 46, including in limiting its exception to manifest violations only – is arguably hindered by the lack of any exception for constitutional violations regarding withdrawal, since that permits too-easy disengagement.⁵² Necessarily, too, the backstops are different: while withdrawal serves as a safeguard for uncorrected constitutional violations concerning ratification, re-ratification is needed to cure withdrawal in violation of domestic law, and that tends to be more cumbersome as a matter of domestic and international procedure. Finally, it may be possible to muster additional arguments for cross-applying Article 46 and its manifest violation standard. For example, one might argue that states appearing to have withdrawn might revoke a prior notification on the ground that the relevant instrument did not ‘take effect’ under Article 68 if it manifestly violated a constitutional requirement of legislative participation.⁵³ No matter the precise basis, however, any such exemption would be doctrinally tenuous and narrow in its potential application.⁵⁴ It remains extremely unlikely that this would change so long as the manifest violation standard serves as a catchall for redressing other, potentially unknown, constitutional violations as well.

What else might be engineered? If treaty law is to be progressively developed – or, with great difficulty, interpreted on the basis of Article 46 or otherwise – states and treaty depositories might adopt the assumption that a withdrawal must satisfy the same separation-of-powers procedures by which the state approved consent, as an international-law embodiment of the acte contraire doctrine. That is quite vulnerable as a general principle, given the actual discrepancy in many states between domestic laws regarding legislative approvals of ratification and withdrawal.⁵⁵ But the severity of any such rule may also be tempered. A state might overcome any such assumption by explaining its contrary (or still indeterminate) domestic principle. And the consequence – if a discrepancy was observed and remained unexplained, but withdrawal could still be approved in reasonable time – might not be to render the initial attempt invalid, thereby sustaining the full-fledged obligation, but instead to establish in the interim an obligation simply to abide by the treaty’s object and purpose.⁵⁶ Still less dramatically, governments declaring withdrawal might be required by depositories or other states simply to disclose their authority and its compatibility with constitutional requirements – which might at least have the effect of making sufficiently ‘manifest’ any violations of a requirement to secure legislative approval.

Other solutions involve bearing possible constitutional restraints in mind while negotiating withdrawal clauses in particular treaties. The easiest lift is to restrict any immediate effect of a notice or instrument of withdrawal – for example, by restricting when withdrawal may first be effectuated, as is typical for International Labor Organization agreements, and evidenced in the Berne Convention and the Paris Agreement⁵⁷ – so as to permit legislative or judicial intervention in the case of a potentially unlawful, unilateral executive measure. More particularly, a treaty’s withdrawal clause might require the disclosure of authority mentioned above, following the precedent of clauses that obligate withdrawing states to accompany their notices with explanations.⁵⁸

III Conclusion

Foreign relations lawyers looking beyond their jurisdictions will naturally focus on any directly comparable national systems, but they should also consider the impact of international law on their discipline. First, international law not only provides opportunities for domestic actors that may be in tension with domestic principles, but also establishes rules that constrain foreign relations law. Second, while those rules of international law intend to respect ratification developments, they also guarantee that (in most circumstances) only constitutional rules assigning authority to the executive to communicate state decisions regarding ratification or withdrawal will be respected. As a result, these international rules have not adequately taken into account developments in legislative authority. Third, none of this is inevitable. In developing a comparative approach to foreign relations law, experts should not overlook the degree to which the effectiveness of domestic norms require attention to internationally established conditions.

4 Comparative Foreign Relations Law between Center and Periphery Liberal and Postcolonial Perspectives

Michael Riegner

I Taking Global Comparison Seriously

Nine months before his death in a US-backed military coup, Chilean President Salvador Allende delivered an acclaimed speech to the UN General Assembly that must have been electrifying. As he concluded, the packed Assembly hall erupted into enthusiastic applause and shouts of ‘Viva Allende!’.¹ Allende’s 1972 speech marked an important rallying cry in the Third World’s mobilization against a global economic order dominated by industrialized countries and Western multinational corporations.² Defending the nationalization of US-owned copper and telecommunications firms, Allende declared that ‘[o]ur economy could no longer tolerate the state of subordination implied in the concentration of more than 80 per cent of its exports in the hands of a small group of large, foreign companies.’³ He mounted a spirited attack against multinational corporations’ economic ‘aggression’ and ‘imperialist intervention’ into Chile’s political affairs. Conscious that he was expressing a grievance shared by many developing countries, Allende concluded: ‘We are witnessing a pitched battle between the great transnational corporations and sovereign States … In a word, the entire political structure of the world is being undermined.’⁴ Allende’s apprehension was no leftist paranoia: in 1973, he was ousted and died in a coup that was supported by the CIA and US-corporate interests and ushered in Augusto Pinochet’s military dictatorship.⁵ Beyond this extreme case, empirical research attests not only to the economic leverage of multinationals over many developing countries but also to the eminently political role transnational corporations have played in many Southern nations.⁶

Allende’s speech is typically seen as a milestone towards a New International Economic Order in international law.⁷ Beyond that, however, the Allende story also offers a different perspective on foreign relations law: one that is shaped by the postcolonial contexts and historical experiences of countries at the periphery of the global political economy. This perspective thus differs from conceptions of foreign relations law that developed in liberal democracies at the center of geopolitical gravity. If foreign relations law is to take global comparison seriously, it needs to take into account this peripheral perspective. Doing so not only pluralizes comparative foreign relations law and thus makes it more representative. It might also help us understand contemporary transformations of foreign relations law in Western liberal democracies, as these legal orders become less centric and more peripheral in a new multipolar geopolitical context.

Extant literature in foreign relations law is shaped by liberal perspectives from the center. As a field of study, foreign relations law is commonly thought to have originated in the peculiar context of the United States, shaped as much by its federal and presidential system as by its geopolitical centrality and dominance.⁸ Most recent treatments of foreign relations law focus on one single legal order or compare a small number of ‘Western’ liberal democracies, typically the US, the UK, Germany or the European Union.⁹ This state of affairs carries the risk, as Helmut Aust has put it, ‘to fall into the trap of a self-referential, liberal, and Western mindset which takes discussions in a few jurisdictions of the “Global North” as being representative of the broader global picture’.¹⁰

This chapter does not address this problem by adding new legal material from the Global South to the existing comparative framework. Rather, the aim is to uncover and pluralize the theoretical assumptions and epistemic foundations of the existing comparative framework. This endeavor can draw on a longstanding critique of the epistemic limitations of traditional comparative law and on the emerging literature on a constitutionalism of the Global South.¹¹ Two desiderata emerge from this literature, one methodological and one epistemic: methodologically, a global comparison requires not only a more representative case selection but also increased attention to the heterogenous historical, political-economic and legal-cultural contexts that shape the meaning and function of foreign relations law in both North and South.¹² Foreign relations law is not simply a national reflection of universal international principles but remains deeply embedded in different varieties of constitutionalism, including non-liberal variants.¹³ Epistemically, the challenge is thus to go beyond mere addition and to question, provincialize and pluralize the theoretical concepts and epistemic categories that prestructure the comparative inquiry.¹⁴ Comparatists need to make explicit the underlying assumptions that define and structure foreign relations law as a field of study and to empirically test, rather than implicitly presuppose, their universal validity beyond Western liberal democracy.

This chapter pursues this approach in two steps. Section II contrasts two ideal-typical perspectives on foreign relations law, a liberal one from the center and a postcolonial one from the periphery. These perspectives differ in their approach to epistemic structure, normative functions and legal subjects of foreign relations law. These differences come into sharp relief in the legal treatment of transnational corporations, whose sociolegal reality questions categorical distinctions between international and national, political and economic, state and individual. For the purposes of this chapter, I take Salvador Allende’s speech to be illustrative of this particular peripheral perspective, which was however widely shared at the time by many Third World nations and whose legacy lives on in contemporary varieties of constitutionalism in the Global South. Section III goes further and argues that the peripheral perspective is not exclusive to an essentialized ‘South’ but has increasing resonance and heuristic value in the ‘North’, as it highlights contemporary transformations in liberal-democratic foreign relations law. Again, these transformations can be studied through the changing attitudes towards transnational corporations, which represent one possible avenue for future comparative research. Section IV concludes with some thoughts on the possibilities and limits of drawing lessons from historical and global comparisons.

II Two Perspectives on Foreign Relations Law: From Centre to Periphery

This following section develops and contrasts two perspectives on foreign relations law, the liberal one from the center (subsection A), and the postcolonial one from the periphery (subsection B). These should be prefaced with three caveats: firstly, they are ideal-typical perspectives that do not neatly map onto the actual law of any particular state, nor are they representative of the entire ‘Global North’ or ‘South’. Rather, the aim is to contrast different contexts, ideological formations and epistemic structures and to offer alternative ways of thinking about foreign relations law. Secondly, ideological and epistemic difference does not hamper ‘comparability’ but has heuristic value precisely in uncovering implicit assumptions and teaching us as much about the self than the other. Thirdly, contrasting the two perspectives does not, at this stage, imply a normative judgment on which is the ‘better’ view. Normatively speaking, the peripheral view does not require abandoning questions about, and a commitment to, democracy, separation of powers and individual rights typically asked in liberal foreign relations law; but it commands a pluralized and contextualized understanding of these concepts.

A Liberal Foreign Relations Law from the Center

If recent handbook and encyclopedia articles are representative of the existing literature, then foreign relations law is defined, in its core, as the domestic legal norms that govern the participation of state organs in diplomatic relations and international lawmaking; beyond that, it arguably includes the domestic effects of these international activities, especially international law, and individual rights protection in internationalized situations.¹⁵ The main research questions and normative concerns pertain to the operation of separation of powers, democracy and individual rights at the interface between the international and domestic sphere.

These definitions and concerns are informed by a liberal perspective from the center of geopolitical gravity.¹⁶ This perspective is shaped by specific contexts: the legal-cultural context is liberal-democratic constitutionalism. The dominant ideological influence is liberalism as it evolved in Europe and North America since the seventeenth century, embodied by intellectual forerunners like Locke, Blackstone, Mann and others.¹⁷ Historically, it is shaped by an experience of statehood in which the nation state preexists international law and is located at the center of an imperially structured global order. Economically, these states have been capital exporting market economies, either of the liberal or coordinated variety of capitalism.¹⁸

The liberal, centric perspective is defined by particular ideas about the structure, function and subjects of foreign relations law: (1) its epistemic structure is based on a binary distinction between international and national that is rigidly applied to the political sphere, but not necessarily to the economic sphere; (2) its normative function is to protect internal and external, political sovereignty by allocating powers to different branches and levels of government; (3) its agency structure is based on two paradigmatic legal subjects: the state and the individual, who has a dual existence as a national citoyen and transnational bourgeois. In short, the liberal foreign relations law is focused primarily on relations among states and on political constitutionalism.

This perspective implies particular conceptions of sovereignty, democracy, separation of powers and rights that are embedded in the broader Western constitutional tradition. The epistemic structure of liberal foreign relations law rests on an understanding of sovereignty that establishes a binary distinction between international and national, external and internal, outside and inside. In this distinction, the national preexists, and autonomously determines its relationship to, the international. Foreign relations law is conceived as the domestic interface where this determination is made. Globalization is perceived as an external force that the state opens itself up to in choosing between ‘open’ or ‘closed’ statehood. Importantly, the distinction between international and national is applied rigidly to the political sphere but not to the economic sphere. The separation of economy and politics by domestic constitutionalism is a well-known feature of nineteenth-century classical liberalism. Legally, this separation was effected by the constitutional protection of economic rights against political power – whether exercised by authoritarian executives or democratically elected legislatures. Importantly for foreign relations, as the economic sphere is separated from the state, it remains possible to imagine a ‘world market’ or a ‘global economy’, to which the liberal state opens itself by allowing for free trade and foreign investment.¹⁹ Internally as externally, its economic role thus tends to be that of a (de)regulator.

This epistemic structure prefigures the normative functions ascribed to foreign relations law. These functions derive from a specific understanding of sovereignty in the different spheres. Sovereignty governs the political sphere, where it follows a dual logic: internationally, sovereignty translates into the requirement of state consent, typically expressed by executive actors. Internally, the logic is popular sovereignty, which requires political rights, democracy and separation of powers. Foreign relations law, then, is essentially about which of the two logics governs the interface of national and international. Importantly, this dual logic does not apply in the same way to the economic sphere, which transcends the national-international binary and remains governed at least as much by the logic of individual liberty and economic rights. Indeed, as historian Quinn Slobodian has recently shown, a key feature of normative order in the twentieth century was the extension of neo- and ordoliberal principles to the international realm: the legal separation between imperium and dominium, sovereignty and property kept economic integration possible in a world of ending empires and multiplying democratic nation states.²⁰

The epistemic structure and normative functions also determine ideas about agency and legal subjectivity. The paradigmatic actors and legal subjects of liberal foreign relations law are the state and the individual. In this binary structure, the state has authority, the individual has liberty. Individual liberty is protected by rights, which differ on the national versus international, political versus economic axes: political rights are, in principle, bounded by the state: the citoyen is a national. In contrast, economic rights extend beyond the state: the bourgeois transcends the national. This idea is most developed in the European Union: supranational free movement rights have direct effect and supremacy in domestic constitutional orders. In practice, the bourgeois is often not a human being but a legal person, typically a corporation. In liberal foreign relations law, corporations have legal subjectivity but do not constitute a separate category of actors. If they appear at all, it is under the rubric of ‘informality’, ‘citizens or residents of other nations’ or ‘individuals’.²¹ In the binary liberal framework, corporations simply pose a problem of attribution, and they are typically attributed to the sphere of the private individual: corporations are expressions of economic liberty and creatures of private law, a legal fiction designed to facilitate the accumulation of capital and its transnational mobility.

The result of this overall framework is neatly summed up by political theorist Christian Volk:

What states and global governance institutions do is political, and political is equated with significant, important, primary; economic, in contrast, is equated with secondary, private, profane. Hidden behind this, of course, is also a normative program, namely that of the (democratic) self-determination of society through the state. But there is a high price to be paid for this program: The political power of private-economic actors remains invisible.²²

B A Postcolonial Perspective from the Periphery

If foreign relations law emerged as an autonomous field of study in liberal democracies like the US, the UK and Germany, this does not mean that other states have no law governing foreign relations.²³ This observation implies, on the one hand, that a global comparison of foreign relations law is in principle possible. On the other hand, it carries the risk of transplanting legal concepts and epistemic categories that developed in a liberal, centric frame of reference into different contexts. As comparative law teaches us, both the meaning and the social function of legal concepts can vary with context. In the context of liberal democracies, foreign relations law may have the function of allocating jurisdiction and external powers to protect political self-determination and individual liberty.²⁴ But we cannot simply assume that this is true in different contexts shaped by different varieties of constitutionalism, geopolitical positions and epistemic frameworks.²⁵ Rather than assuming similarity, this chapter takes the different historical and political-economic context as starting point for an alternative perspective that looks at foreign relations law from the postcolonial periphery. ‘Periphery’ here designates a decentered position in the economic geography of contemporary capitalism, while ‘postcolonial’ refers to the condition shaped by the many legacies of colonial domination.²⁶

Salvador Allende’s 1972 speech can be read as manifesto of the peripheral perspective, in as much as it crystallizes formative experiences, epistemic categories and legal concepts prevalent across the Third World at the time. It captures a historical moment in which rapid decolonization gave rise to alternative political and legal imaginations in the periphery, embodied especially by the UN Declaration on Permanent Sovereignty over Natural Resources and the Declaration for the Establishment of a New International Economic Order adopted in 1974.²⁷ While these initiatives are often dismissed as inconsequential in international law, they were also an important expression of, and influence on, constitutional law within Third World countries. Within these legal orders, they found fertile ground in traditions of social and economic constitutionalism, inaugurated by the Mexican constitution of 1917 and the Weimar constitution of 1919, which both influenced constitutional traditions in the developing world.²⁸

In terms of ideological influences, the peripheral perspective popularized by Allende owed much to dependency theorists like Raul Prebisch and postcolonial thinkers like Franz Fanon, who sympathized with Marxist ideas all while rejecting many aspects of actually existing socialism.²⁹ As for liberalism, there was and is little enthusiasm for those liberal varieties that subjected the periphery to free-trade imperialism and, later on, to crippling neoliberal structural adjustment.³⁰ In terms of historical context, foreign relations did not begin as interstate relations but as dealings between chartered trading companies like the East India Company and local rulers.³¹ The experience of statehood was also quite different: for many postcolonial states, the international preceded the national; peripheral statehood was produced and defined by international law during decolonization. The state was the only form of political organization that was legally available for collective self-determination.³² For many new states, decolonization meant political independence but continued economic dependence: they depended on imports of capital and technology and on volatile exports of primary commodities, which were often foreign-owned or locked into unequal concessions agreements. In response, they experimented with industrial policies of import substitution and mixed or planned economies.³³

This context gave rise to legal thinking about foreign relations that differs from the liberal-centric perspective in terms of structure, function and agency: (1) the epistemic structure is based on transnational and hybrid categories that transcend the binary opposition between national and international, political and economic; (2) the normative functions include enhancing economic self-determination, socioeconomic development and equality; (3) the agency structure is plural, including legal subjects ranging from state and individual to corporations, indigenous peoples and rights of nature. In short, peripheral foreign relations law is broader than the liberal one: it includes economic relations with powerful non-state actors and aspects of economic constitutionalism.

This way of thinking about foreign relations law implies different conceptions of sovereignty, collective self-determination and rights. In terms of epistemic structure, the dichotomy of international and national has less historical and sociological plausibility. International law not only produced the peripheral state, but also pervaded it from the outset: international institutions midwifed, nurtured, socialized many of the new states; postcolonial law was ‘modernized’ in the image of Western law in ‘law and development’ efforts; land, natural resources and corporations were often foreign-owned; globalization was not external but internal to the state.³⁴ In this situation, the category of transnationalism might be a more accurate representation of peripheral relations with the rest of the world. Similarly, the separation of the political and economic spheres had less plausibility in the periphery. In the history of colonialism, sovereignty and property had been closely entangled: colonization frequently began with land acquisition, and corporate property rights often became functionally equivalent to sovereignty.³⁵ After the end of formal colonization, colonial hierarchies lived on in privatized property relationships. The transnational corporations symbolized this entanglement of economic and political power so vociferously denounced by Allende in this 1972 speech. This historical experience gave credit to the idea that economic relations were political, and vice versa.

These epistemic differences translated into different functions of foreign relations law. After decolonization had achieved political independence, sovereignty became closely associated with economic self-determination and development. The external and internal spheres were not differentiated by a dual logic of political sovereignty but bound together by one unitary rationality: development. Externally, peripheral sovereignty was not defined by consent to preexisting international law but conditioned on the state of development – from the mandate system to weighted voting in international financial institutions. Internally, peripheral states came into being as developmental states, whose teleology was to ‘modernize’ and ‘catch up’ with European statehood.³⁶ Nationalizations of ‘system-relevant’ enterprises, as those defended by Allende in his speech, were a means to achieve economic independence, development and substantive equality. A separation of the economic and political was neither epistemically plausible nor normatively desirable. If there was a concern with separation, then it was separation of powers in the private sphere, whereas the state needed a strong executive to confront multinational corporations. Thus, the function of the law was to realize economic sovereignty, ideals of economic democracy and a measure of economic equality.

Thirdly, peripheral agency structure is not binary but plural. The state and the individual are important but not exclusive actors. There is a category of legal subjects that occupies an intermediary space between the individual and the state. Legal subjectivity and constitutional rights are granted to corporations, other collective actors like trade unions and indigenous peoples, and most recently even to nature itself.³⁷ Corporations are not only economic but political entities, and they have their own transnational reality independent from the private law of any particular state. As Allende put it in another speech in 1972: corporations ‘have become a supranational force that is threatening to get completely out of control … They have their objectives, their own policies with regard to trade, shipping, international affairs and economic integration, their own view of things, their own activity, their own world.’³⁸

This ‘supranational’ status was ensured by a variety of legal techniques: the internationalization of concession agreements and contracts between states and investors, which insulated them from the domestic law of the host state; the submission of investor-state disputes to international arbitration, which removed them from the jurisdiction of domestic courts of the host state, as became evident with the rise of such disputes in the 1990s; and finally the extraterritorial enforcement of arbitral awards in all major jurisdictions, which placed host countries at the mercy of foreign courts, often those in the investor’s home state.³⁹ Against this quasi-supranational status, Allende asserted home state jurisdiction and the supremacy of home state law:

The Chilean Constitution provides that nationalization disputes should be resolved by a tribunal which, like all tribunals in my country, has complete independence and sovereignty in the adoption of decisions … we shall continue with undiminished determination to maintain that only the Chilean courts are competent to pass judgment in any dispute concerning the nationalization of our basic resources. For Chile, this is not merely an important problem of juridical interpretation; it is a question of sovereignty. Indeed, it is far more than this – it is a question of survival.⁴⁰

It is this question of survival that defined the foreign relations law in much of the worlds’ periphery.

Allende’s reference to the Chilean constitution provides one concrete example of how the peripheral perspective translates into positive constitutional law: in July 1971, a constitutional amendment had enabled the nationalization of the copper industry by declaring that the state ‘has absolute, exclusive, inalienable and imprescriptible domain over all mines’ – a provision still in force at the time of writing (article 19 XXIV of the constitution of 1980).⁴¹ While this chapter is not the place for a systematic comparison of positive legal provisions across time and space, some further examples might still serve to illustrate the theoretical points made above.

In this regard, provisions on public ownership of natural resources like the ones in Chile are not an isolated example but a recurring theme of a foreign relations law that rejects the liberal dichotomy of economy and politics, property and sovereignty. Many postcolonial constitutions introduced similar provisions that allowed for the nationalization of assets of transnational corporations and that constituted the domestic equivalent of international law claims to permanent sovereignty over natural resources.⁴² Several examples thus stem from the heyday of the New International Economic Order: the independence constitution of Angola of 1975, for instance, declared all natural resources, including oil and minerals, property of the state (article 11, today article 16 of the constitution of 2010). Iran, known to international lawyers for protracted arbitration over the nationalization of its oil industry, provides in its constitution of 1979 that ‘mineral deposits’ shall be at the disposal of the Islamic government (article 45), excludes foreigners from mineral extraction concessions (article 81) and prohibits agreements resulting in foreign control over natural resources (article 153). The current Constitution of Kenya (2010) not only declares all minerals and mineral oils to be ‘public land’ (article 61 I lit. f), but also requires parliamentary approval for the grant of natural resource concessions (article 71).⁴³

Other examples come from an older constitutional tradition in Latin America, which is often associated with the Calvo doctrine in international law. Domestically, the Mexican constitution of 1917 vested ownership of natural resources like petroleum in the nation (article 27), and the Brazilian constitution of 1967 stipulated a public monopoly for petroleum exploration and exploitation (article 162, today articles 176 and 177).⁴⁴ Latin America also offers other examples beyond public ownership. Constitutional land rights of indigenous peoples, for instance, illustrate the plural agency structure of a postcolonial foreign relations law. In particular, the requirement of free, prior and informed consultation is recognized in constitutional law, either by the constitutional text like in Bolivia (article 30.II.15, 352, 403) or by constitutional case law like in Colombia.⁴⁵ In practice, this requirement can lead to quasi-diplomatic negotiations between indigenous representatives and private transnational corporations in which the state plays merely a moderating role, if at all.⁴⁶

While these examples all illustrate elements of the peripheral perspective in positive law, they still evince a considerable diversity in terms of actual practice and wider constitutional context, which ranges from mixed-economy constitutional democracies like Brazil to authoritarian systems like Iran. This diversity suggests that constitutionalism in the Global South is too heterogeneous to attribute one uniform peripheral perspective to its foreign relations law. If one is intent on finding a measure of convergence, an intra-regional perspective might be more promising. One example for such a regional approach to foreign relations law is regional integration in Latin America, which is still influenced by peripheral experiences. The model of regional integration espoused by Latin American states has recently been labelled as a multi-level exercise in ‘transformative constitutionalism’⁴⁷ – a variety of constitutionalism that is often conceived as a ‘Southern’ alternative to ‘Northern’ liberal constitutionalism.⁴⁸

This model of open statehood differs from its European counterpart in its differential constitutional openness for human rights and economic integration.⁴⁹ Human rights norms and case law from the Inter-American system enjoy a privileged constitutional status in contemporary foreign relations law in Latin America. This status is based on explicit opening clauses such as article 93 of the Constitution of Colombia and on incorporation doctrines like the ‘block of constitutionality’ and ‘conventionality control’.⁵⁰ These doctrines accord international civil, political and social rights a status that is comparable to EU-type direct effect and, in some jurisdictions, supremacy. In contrast, regional economic integration and international economic law do not enjoy a similarly privileged constitutional status.⁵¹ And while the Inter-American human rights acquis protects collective rights of social groups like indigenous peoples,⁵² it does not recognize rights of legal persons like corporations – unlike the European Court of Human Rights and the Court of Justice of the EU.⁵³ Overall, this model of regional integration thus focuses on openness towards supranational guarantees for democratic and social constitutionalism, whereas economic constitutionalism remains located at the national level – quite the reverse of the European model.

III Contemporary Trends: Is Foreign Relations Law Becoming More Peripheral?

The following section begins by sketching the changing context which gives the peripheral perspective increasing resonance across the North-South-divide (subsection A). Against this background, it seeks to illustrate the heuristic value of peripheral research perspectives, which shed light on three contemporary trends in foreign relations law (subsection B): the rebalancing of the relationship between property and sovereignty in investment law; the hybridization of foreign relations through state-owned enterprises; and attempts at limiting private corporate power, or quasi-sovereignty, in debates about business and human rights.

A Changing Context: Peripheral Echoes in the Center

In June 2018, the US White House published a report denouncing China’s ‘economic aggression’, warning that ‘Beijing’s ultimate goal is for domestic companies to replace foreign companies as designers and manufacturers of key technology and products first at home, then abroad … [C]orporate governance has become a tool to advance China’s strategic goals, rather than simply, as is the custom of international rules, to advance the profit-maximizing goals of the enterprise’.⁵⁴ Soon, this political stance had legal consequences: the Chinese telecommunications company Huawei was banned by Congress from sensitive public procurement, and the US administration is pushing for Huawei’s exclusion from 5G networks in the US and Western allies.⁵⁵ As other governments were pondering such a move, the UK House of Commons published a report addressing the role of social media companies in ‘Disinformation and “fake news”’: It found that ‘malicious forces use Facebook to … influence elections and democratic processes – much of which Facebook, and other social media companies, are either unable or unwilling to prevent. We need to apply widely-accepted democratic principles to ensure their application in the digital age. … The big tech companies must not be allowed to expand exponentially, without constraint or proper regulatory oversight.’⁵⁶

These statements echo some themes familiar from Allende’s speech: the hybrid nature of corporations between the political and the economic; their impact on democracy; and their role in foreign relations. These echoes do not necessarily imply that Euro-America is evolving towards the South, as prominent anthropologists claim.⁵⁷ They do show, however, that peripheral ideas on foreign relations law are not exclusive to an essentialized ‘South’ but have increasing resonance in the changing context of foreign relations law in the ‘North’. This context is marked by intensifying contestations of liberal democracy, of economic liberalism and of liberal internationalism.⁵⁸ The geopolitical context is increasingly shaped by emerging powers like China and by the incremental evolution of Western liberal democracies from capital exporters to capital importers, from norm shapers to norm takers.⁵⁹

In this new multipolar context, international law is increasingly ‘hitting home’, and foreign relations law is evolving in response.⁶⁰ A peripheral perspective brings these transformations of foreign relations law into focus. Its main heuristic value in contemporary times is the recognition that in an economically interdependent and multipolar world, foreign relations law is not limited to political relations but requires attention to the materiality of global relations, to interferences between different varieties of economic constitutionalism, and to the interdependence of economic and political constitutionalism. Again, this general point can be illustrated by legal attitudes towards transnational corporations.⁶¹

B Peripheral Perspectives on Contemporary Trends in Foreign Relations Law

1 Rebalancing Sovereignty and Property in Foreign Investment Law

A first trend is the rebalancing of the relationship between sovereignty and property in the area of investment law. Standard narratives portray international investment law as an evolution from diplomatic protection of private property by sovereign states to a depoliticization and privatization of property disputes between investors and states.⁶² Consequently, investment law has not been in the focus of liberal foreign relations law. However, host countries in the Global South have been experiencing for some time that international investment protection and arbitration can interfere with domestic constitutional principles of democracy, rule of law and human rights.⁶³ This peripheral experience has eventually hit home with recent controversies about TTIP, CETA and TPP in Europe and North America.⁶⁴ This is leading to re-evaluation, reform and sometimes repudiation of bilateral investment treaties and arbitration agreements across the North-South divide.⁶⁵ These reform efforts seek to recalibrate the relationship between property and sovereignty, a process which can arguably draw important lessons from peripheral legal experiences, concepts and arguments. As a recent observer put it: developed countries have learned to start worrying and love the Calvo doctrine.⁶⁶

If one takes peripheral perspectives on the structure, function and subjects of foreign relations law seriously, then at least three issues lend themselves to further investigation. The first concerns the legal relations between foreign investors and the host states, be they contractual or hierarchical. If these legal relations are part of foreign relations, then the question of who decides about the admission of foreign investment, in what procedure and under what conditions is a critical question for foreign relations law. For jurisdictions like Germany, such criticality, or Wesentlichkeit, may have doctrinal consequences under prevailing doctrines of separation of powers and democracy: public relations with foreign investors may need to be increasingly subjected to parliamentary legislation instead of executive regulation.⁶⁷

The second issue is jurisdiction. If investor-state relations are part of foreign relations, then the question of how foreign relations law allocates investment disputes among host state courts, arbitral tribunals and third-country judiciaries is a key question.⁶⁸ From a peripheral perspective, the enforcement of arbitral awards against host states in third-country jurisdictions is a key interface between state and non-state legal systems. Behind seemingly technical questions regarding standards of review for annulment or non-execution of awards on the basis of public policy lurk fundamental questions of transnational legal pluralism and protection of foreign property, sovereignty, democracy and rule of law.⁶⁹

A third issue is the domestic effect of international investment law and arbitral awards in host countries. If a domestic constitutional order contains opening clauses for international law, do these apply to international investment treaties? And what is the domestic effect of arbitral awards? This latter question was less relevant as long as tribunals awarded monetary compensation that would be paid voluntarily or be enforced against state assets abroad. But recent awards also adopt in-kind remedies. In a 2018 award in the Chevron v. Ecuador saga, the Permanent Court of Arbitration ordered Ecuador ‘to remove the status of enforceability’ from domestic court judgments and ‘to preclude any of the [plaintiffs] from enforcing’ them.⁷⁰ These judgments had required Chevron to pay damages to local residents and had been confirmed by the Ecuadorian constitutional court. Implementing such an award certainly poses delicate questions for domestic constitutional law and for the separation of powers in any constitutional order, and for foreign relations law research in general.

2 Sovereignty in the Guise of Property: Hybrid Foreign Relations and State-Owned Enterprises

If international investment law is being rebalanced towards sovereignty, then sovereignty is at the same time being transformed by a symbiosis with property: state-owned enterprises, hybrid public-private entities or partly privatized corporations are increasingly internationalizing their activities.⁷¹ In this regard, the maybe most significant transformation of foreign relations is the globalization of Chinese state-owned enterprises and the rise of foreign investment by sovereign wealth funds.⁷² In a parallel development, sovereignty appears in the guises of property in large-scale land acquisition by public investors in Africa and elsewhere, which potentially disassembles territorial sovereignty of host states.⁷³ In all these instances, foreign relations acquire a hybrid nature – private in form but public in substance.

To analytically capture this hybridization, foreign relations law research needs a more complex account of the corporation than liberal legalism ordinarily gives. If ‘corporate governance has become a tool to advance China’s strategic goals’,⁷⁴ as the Trump administration laments, then foreign relations lawyers need to understand non-liberal conceptions of the corporation in China and other capital exporting countries.⁷⁵ Huawei, for instance, is formally not a public enterprise but employee-owned; but Chinese law may have other ways of establishing state control.⁷⁶ Comparing these different theoretical and legal conceptions of the corporation will be a first important avenue of research for comparative foreign relations lawyers.

A second set of questions pertains to the constitutional rights of foreign state-owned corporations. For instance, the German Federal Constitutional Court held in its 2016 decision on the phase-out of nuclear energy that Vattenfall, a Swedish state-owned enterprise, enjoyed constitutional protection of property in Germany.⁷⁷ Although the court was careful to limit its reasoning to ‘exceptional cases’ of enterprises owned by EU member states, there still remain many open questions for foreign relations lawyers in this regard – not least because Vattenfall has initiated parallel arbitration procedures and because the European Court of Human Rights recognizes property rights of state-owned enterprises regardless of EU membership.⁷⁸

While granting constitutional rights to foreign state-owned enterprises limits the space for regulation in this regard, another legal institution raises even farther-reaching issues: namely, sovereign immunity and its application to state-owned enterprises in foreign courts. While the German Constitutional Court adopts a restrictive stance on acta iure gestionis,⁷⁹ Chinese state-owned enterprises seem to have successfully invoked sovereign immunity in US federal courts, prompting proposals for reform.⁸⁰ If granted, immunity not only poses problems from a rule of law perspective but also limits the reach of democratic economic regulation.⁸¹

3 Limiting or Legitimizing Private Quasi-Sovereignty: Business and Human Rights and Is Alternatives

If Northern efforts to internationalize corporate rights in investment law have succeeded, Southern attempts at internationalizing corporate obligations have failed so far: early initiatives at UN level, launched by Allende’s Chile and its allies, led to the establishment of a UN Commission on Transnational Corporations in 1975 and to a soft-law code of conduct, but not to a binding legal instrument.⁸² Regulation remained mostly at national level and thus vulnerable to bilateral pressures, collective action problems and regulatory arbitrage in a globalized political economy. This situation has not changed thus far with the renewed push for internationalization under the rubric of ‘business and human rights’, although developing countries are spearheading negotiations for a binding treaty on business and human rights, supported by China and opposed by most Western liberal democracies.⁸³

The legal focus thus remains on domestic law, and thus on the foreign relations law of investor home states and host states. The current debate centers on the role of home states in the extraterritorial protection of human rights against corporate misconduct in host states.⁸⁴ Since the US Supreme Court has all but closed the door to the extraterritorial application of the Alien Tort Claims Act, the focus has shifted to domestic courts in Europe and to legislative projects, enacted for instance in California and in France and tabled in Germany in February 2019.⁸⁵

A peripheral perspective, however, raises further questions. Firstly, from this perspective, the focus on extraterritorial home state obligations and regulations is ambivalent: it not only subjects host states to standards defined and applied elsewhere but also implies that host state legal systems are incapable, or unwilling, to dispense justice. While this may be true in some cases, it cannot be assumed for all jurisdictions, especially the many constitutional democracies with independent courts in the Global South. Indeed, a peripheral perspective might reverse the focus and ask to what extent host state regulation and adjudication can and should be extended extraterritorially to govern global value chains and transnational corporate conglomerates. Taking host state law seriously brings distinct regulatory approaches to the table – such as horizontal effect of fundamental rights. The idea of horizontal effect is a hallmark of transformative constitutionalism in the Global South and is used by activists and social movements against corporate abuses of powers.⁸⁶ In substance, this approach redeploys the vocabulary and legal techniques developed to restrain public authority to tame private power.

The consequences of this move for separation of powers, democracy and foreign relations remain to be fully understood. One consequence of applying fundamental rights to transnational corporations is that courts effectively become extraterritorial regulators and tend to be empowered vis-à-vis the other branches. This is potentially a problem from a liberal foreign relations law perspective; it may be less problematic for a transformative constitutionalism that prizes activist courts and an understanding of separation of powers not limited to checks and balances but also encompassing pushes and pulls. Beyond this, there are issues of separation between public and private power. Some see horizontal effect as a basis for corporate commitments to human rights, a desirable ‘self-constitutionalization’ of transnational enterprises and a basis for a societal constitutionalism beyond the state.⁸⁷ Others fear that a rights-based societal constitutionalism will not restrain but rather legitimize private power.⁸⁸ Likening a corporation to a state for purposes of human rights obligations might confirm, rather than restrain, their quasi-sovereign status. Domestic courts are faced with these controversies when pondering the legal value of corporate human rights standards in litigation.

In light of these doubts, a third and final question pertains to alternatives to the business and human rights frame from a peripheral foreign relations law perspective. Again, Allende’s speech offers such an alternative perspective: his concerns and proposals were not formulated in the liberal language of rights but in the register of democracy. While ideas about economic democracy and workers co-determination have lost traction in a globalized economy dominated by (neo)liberal thinking, it may be worth reflecting on how the vocabulary of collective self-determination may be used creatively within the contemporary globalized economy. For instance, resurgent interest in inequality has led to greater space for alternative visions of corporate governance that go beyond ‘shareholder democracy’ and ‘corporate citizenship’ on the one hand, and nationalization and state ownership on the other. Such proposals are based on the premise that the corporation, conceived as a political entity, allows similar collective participation rights than the political sphere and that these rights do not depend on ownership. Rather, they allow for inclusion of workers and other stakeholders affected by corporate activities.⁸⁹ In these schemes, peripheral countries would benefit from the inclusion in corporate decision-making by virtue of their labor and affected stakeholders. This might alter the current North/South dynamics of capital exploitation by promoting economic democracy in developing countries through formally private initiatives that potentially bypass current barriers to more democratic economic reforms in highly unequal societies with unresponsive political regimes.

IV Conclusion

Peripheral legal ideas are not exclusive to an essentialized ‘Global South’ but are present in legal history, heterodox thinking and contemporary legal transformations across the North-South divide. In foreign relations law, peripheral ideas are often located at the margins of, or outside, a field of study defined by a liberal perspective from the center. A peripheral perspective brings these questions into sharper focus, and it offers different answers contingent on differing geopolitical positions and epistemic foundations. This raises the question of whether there are any lessons to be learned from experiences of the periphery for our normative evaluation of present-day challenges across the North-South divide.

That question must be denied if one assumes a view of history and time that follows a liberal narrative of progress and a singular conception of modernity: The West is ahead, everyone else is catching up. If one accepts, instead, the idea of multiple modernities and nonlinear historical evolution, one may see the history of Southern countries as an inspiration – and as a warning.⁹⁰ One ironic aspect of the recent backlash against internationalism are the curious echoes of anticolonial nationalism in the language of populist nationalism – for instance, in Brexit proponents’ appeals to national liberation and to individual sacrifice as necessary for achieving this goal.⁹¹ These echoes are reason enough to recall postcolonial critiques of ‘national liberation’, which left unresolved the question of who would govern the nation once liberated, and who would do the sacrificing. Franz Fanon warned of the pitfalls of ‘national consciousness’, seeing within the liberation movements a group of bourgeois leaders who ‘mobilize the people with slogans of independence, and for the rest leave it to future events’ and are committed only to a ‘mission [that] has nothing to do with transforming the nation; it consists, prosaically, of being the transmission line between the nation and capitalism’.⁹²

5 Finding Foreign Relations Law in India: A Decolonial Dissent

Prabhakar Singh

I Introduction

[A]s a Justice of the High Court of England … it is my duty to apply English municipal law, including English foreign relations law … Questions of foreign affairs arising in English courts have … English law answers.¹

Could an Indian judge, as the purveyor of the common law coming from England to India, too, identify a duty to apply Indian ‘foreign relations law’ (FRL), if any? Could the judge also assert that the questions of ‘foreign affairs’ arising before Indian courts ought to have Indian law answers? After acknowledging the presence of an established FRL in England, the British High Court in the Muffakham Jah case notably found for Pakistan ‘a foreign relations law’ but a ‘constitutional law’ for India.² We will do well to remember that while Britain does not have a written constitution, United States has one of the world’s shortest written constitutions.³ Contrarily, the Constitution of India is the postcolonial world’s most detailed text. Needless to say, the Constitution is a significant lens with which to identify the possibility, or not, of an FRL within the law of the land.

In what follows, Section II investigates the origins of FRL that appears to reinforce, in the words of the Commonwealthian D.P. O’Connell, the ‘essential unity of all European legal structures’ that is ‘founded on the moral concord of Western peoples’.⁴ It concludes that the FRL scholars practice a convenient overlooking of the colonial history of the common law. Section III studies the significance Indian Constitution attaches to the international law of states and that of state and peoples and aliens. Since the Indian Constitution does not break free by design from common law, the Indian judges use the Constitution as well as common law to harmonise international law with Indian law. Section IV investigates how the Indian Supreme Court excludes foreign relations from judicial scrutiny. An outcome of this investigation is the fidelity of the Supreme Court to British case laws over the American precedents in its first two decades.⁵ Section V discusses the Supreme Court’s reading of India’s postcolonial territory under the uti possidetis lens of international law. The study of uti possidetis for India is significant in that the Supreme Court has created a balance between a fractured reception of territory from the British and the postcolonial government’s reception of territory within the Constitution. Indeed, the President of India has from time to time sought the Court’s opinion on the executive’s power of exchange of territory and cession, like with regard to Pakistan, or the Court has examined the welcoming of new territories, like Sikkim, into the Union of India. Such questions from the executive have allowed the Indian Supreme Court to affirm its Constitutional superiority with deference to the competence of the executive in territorial matters while reading international law in harmony with, what I call, a ‘postcolonial common law’. Section VI concludes.

II FRL As the ‘Concord of Western Peoples’: The Commonwealth and Colonialism

A The FRL of the Commonwealth

An FRL, in Campbell McLachlan’s definition, ought to be ‘a distinct field in Anglo-Commonwealth legal systems’.⁶ How inclusive is this common law, however, of non settler jurisdictions such as India and Kenya, for example? ‘In approaching the question of the existence or otherwise of [a] doctrine in English law’, O’Connell wrote in 1956, ‘one must not only appreciate the character of the English legal system, but go further and recognize the essential unity of all European legal structures, a unity founded on the moral concord of Western peoples’.⁷

O’Connell was referring to the resistance among the English lawyers in importing a European legal idea calling into service the ‘unity founded on the moral concord of Western peoples’. In the twenty-first century, McLachlan’s Foreign Relations Law explicitly refers to only four Anglo-Commonwealth states; the United Kingdom, Australia, Canada and New Zealand,⁸ effecting a further provincialisation of the ‘concord of Western peoples’ – the white ex-colonies of imperial Britain. Commonwealth lawyers have, as it were, gone out into the woods to pick mushrooms of various laws, if you will, for an FRL soup. The American and the British lawyers have to go mushroom-picking perhaps because they do not have the benefit of a Constitution like India’s, the world’s largest and enduring. Besides, India, a common law jurisdiction, is expectedly out of the consideration from both the ‘concord of the Western peoples’ as well as the list of jurisdictions to make an FRL from.⁹ Should the FRL scholars look into the deliberations of the Indian Constitution, the conclusion would be that the advocacy for FRL is somewhat provincial.

For McLachlan, an FRL pertains to a

whole class of legal issues and disputes, dealing with: the relationship between public international law and the municipal legal system in the control of foreign relations; the exercise of the foreign relations power by the three organs of government – its legal implications and its limits; the implications of the foreign relations power for the rights of the individual; and the treatment of the foreign state within the municipal legal system.¹⁰

This class is understandably large. McLachlan claims that FRL ‘serves to fill a key gap by extending to the field of public powers the technique of private international law – jurisdiction and applicable law’ thereby depositing FRL in the domain of the ‘constitutional state’.¹¹

It is well known that India inherited a common law system from British colonialism. And in 1950 India received her Constitution that was inspired by various civil and common law systems. Does India also have an FRL in the cast and mould made by the Oxford Handbook on FRL?¹² The Handbook casts a very wide net in so far as crafting an FRL is concerned. And the cast of that FRL net, for the Handbook editor Curtis Bradley, covers not just classic international law. For Bradley, the FRLs ‘encompass the domestic law of each nation that governs how that nation interacts with the rest of the world’. We are confronted with the famous Dworkinian question then; could the ‘principles’ of foreign affairs be passed off as the ‘law’ of foreign affairs in India? I think not.

We need to first find an FRL in India. Only afterwards could we answer whether there exists or not the possibility of either bridges or boundaries between an Indian FRL and international law. If we take the FRL’s scope and definition from the Handbook and combine it with this volume editors’ expectations, we might squarely conclude that FRL for India remains primarily a constitutional reading of the international law of states and individuals.¹³

B Overlooking Legal History

The idiosyncratic judges, scholars, and diplomats in the geographical South should not be easily convinced by the FRL scholarship that is innocent of legal history.¹⁴ The FRL’s first impression on any Asian post-colony is that of a new blueprint of imperialism through law in the twenty-first century because, as Acemoglu, Johnson and Robinson note:

There were different types of colonization policies which created different sets of institutions. At one extreme, European powers set up ‘extractive states’, [where the colonists] did not introduce much protection for private property, nor did they provide checks and balances against government expropriation. In fact, the main purpose of the extractive state was to transfer as much of the resources of the colony to the colonizer. At the other extreme, many Europeans migrated and settled in a number of colonies, creating … ‘Neo-Europes’. The settlers tried to replicate European institutions, with strong emphasis on private property and checks against government power.¹⁵

It is rather remarkable that, as a legal innovation, FRL is made up of and seeks to export to the rest of the world the common law of ‘Neo-Europes’ whose ‘[p]rimary examples’ for Acemoglu, Johnson and Robinson ‘include Australia, New Zealand, Canada, and the United States’.¹⁶ How exactly does McLachlan’s choice of jurisdictions map on to lands where ‘Europeans migrated and settled in a number of colonies’ beyond Europe? Given this obvious colonial history impacting the choice of the four jurisdictions to make and export FRL from, the postcolonial Indian should be circumspect. Whether such an FRL’s legal hermeneutics, in the presence of other ways of doing law – the regular constitutional law for example – will convince the geographical South remains to be seen.¹⁷

Effectively, from our vantage point, the FRL scholars seem to conveniently overlook legal history.¹⁸ There are two aspects of that overlooked legal history relevant to the postcolonial common law world. Jurist Fali Nariman reminds us of the first one: a remarkable aspect of ‘legal history is that no country which had not at some time or the other been a part of the British Empire has ever voluntarily adopted the common law!’¹⁹ Nariman finds it a ‘stark fact’ that ‘whenever there was a choice between common law and the Roman law’, the basis of the continental law, ‘the decision has always been in favour of Roman law’.²⁰

Second, the employment of private law in the service of public law is not so new. The attempts to create FRL as a new field to study law in that sense mimics the McNair-Lauterpacht school of public law making by private law principles. This stoked Jessup’s theoretical innovation soon after the Asian decolonisation aimed at puncturing Asian states’ new-found sovereignty by invoking as the applicable law the pro-investor law of the United States.²¹

Walking through the Indian constitutional cases that have settled questions of jurisdiction and applicable law, the fulcrum of FRL’s proposal, seems a good starting point for reflection.

III The Indian Supreme Court between Principles, Policy and the Law

Part 5, chapter 4 of the Indian Constitution talks about ‘the Union judiciary’. The Supreme Court of India currently comprises of a Chief Justice and thirty other judges appointed by the President of India.²² Under article 143(1) the President has the powers to seek the opinion of the Court about ‘a question of law or fact’ which is of ‘public importance’. The Court ‘as it thinks fit, report[s] to the President its opinion’. Article 144 mandates that ‘All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court’. Very importantly, under article 145(5) of the Constitution:

No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.

The Indian Constitution in providing for the possibility of ‘delivering a dissenting judgment or opinion’ seeks to balance the majority rule principle of judicial decision-making with the constitutional mandate for judicial idiosyncrasy of separate and dissenting opinions. It bears reminding that this constitutional mandate for dissent has allowed the Indian judges to save India's democratic and secular fabric from the blades of the past and the present authoritarian governments.

A Article 51 of the Constitution and International Law

Article 51 of the Indian Constitution speaks most directly about international law. It reads as follows:

The State shall endeavour to –

1. (a) promote international peace and security;

2. (b) maintain just and honourable relations between nations;

3. (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and

4. (d) encourage settlement of international disputes by arbitration.

Since article 51(c) distinguishes ‘international law’ and ‘treaty obligations’, the Indian Constitution in such ways recognises both treaty and non-treaty sources of international law. The Indian Supreme Court in the seven bench Maneka Gandhi ruling noted: In the context of expressions like ‘security’, ‘public order’, ‘public interest’ and ‘friendly foreign relations’, governments come and go, ‘but the fundamental rights of the people cannot be subject to the wishful value sets of political regimes of the passing day’.²³ Maneka Gandhi thus pointed at the permanency of fundamental rights over the political nature of the executive. Maneka Gandhi set a fertile bed for and planted the seeds of Vishaka v. State of Rajasthan to flower later in that the former’s emphasis on the ‘fundamental rights’ nudged the Court in the latter case to import under article 51 from an international convention on the fundamental rights for women. Justice Verma noted in Vishaka:

In the absence of domestic law to formulate effective measures to check [an] evil naturally the contents of International Conventions and norms are significant for the purpose of interpretation of [fundamental rights guarantees] of the Constitutions … Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c).²⁴

Article 51 remains non-justiciable for falling under ‘policy’ and ‘principle’ and not ‘law’ nevertheless. In other words, while one cannot directly invoke a treaty in the Supreme Court that India has not passed into a domestic law, Justice Verma, a champion of human rights, offered a useful elucidation. The Parliament has full powers to enact laws for implementing international conventions by virtue of article 253 read with Entry 14 of the Union List in the Seventh Schedule of the Constitution. And article 73(1)(a) provides that the ‘executive power of the Union shall extend’ to the ‘matters with respect to which Parliament has power to make laws’. Next, article 73(1)(b) extends the executive power ‘to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement’.

We find that the Indian Constitution distinguishes the executive’s competence from the ‘Parliament’s power’ and authority to pass a law by virtue of ‘any treaty’. The executive power of the Indian Union, Justice Verma said, is therefore available ‘till the parliament enacts to expressly provide measures needed to curb a gap in the law’.²⁵

The executive is under the Constitution vested with residual powers up until the Parliament passes an international treaty into domestic law. The Supreme Court’s firm statement of the relationship between international treaties and rights and obligations in municipal law, an assertion of dualism, can be found first in the Maganbhai judgment:

The Constitution of India makes no provision making legislation a condition of the entry into an international treaty in times either of war or peace. The executive is qua the State competent to represent the State in all matters international and may by agreement, convention or treaties incur obligations which in international law are binding upon the State. There is a distinction between the formation and the performance of the obligations constituted by a treaty. Under the Constitution the obligations arising under the agreement or treaties are not by their own force binding upon Indian nationals or others.²⁶

Essentially, Maganbhai distinguishes the signing of a treaty by the State from the ‘performance’ of obligations arising from such a treaty under the Indian law. While the executive is fully competent to sign a treaty, for the treaty to pass into domestic law the Parliament alone can do the lawmaking. Acknowledging this difference, Justice Verma astutely read article 51 as allowing international conventions and treaties becoming only a ‘policy’ guide for interpreting Indian law so long as such international laws do not conflict with Indian laws. In other words, international law for Vishaka only offers tools for interpretation and not for creating new obligations to arise without a supporting domestic law.

We can therefore hardly say that the ‘directive principles’ have become justiciable. They continue to remain ‘principles’ and ‘policy’ that the Court might remind the executive of, as it sometimes does, to nudge them to pass a suitable law. Article 37 of the Indian Constitution makes it very clear: ‘The provisions contained in this Part [on directive principles] shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws’.²⁷ On balance, article 37 appears to instruct the Indian state and not the higher judiciary.²⁸

We can see that for the Court instructing the executive in territorial matters is a more contested endeavour than importing justice-enhancing norms from human rights treaties. This is so because the Vishaka reads human rights treaties as codified customary laws but the Court generally finds no such thing as customary laws on territory. To then adjudge the Court’s views on human rights treaties as a possible rejection of dualism in India is the kind of eagerness that is misleading. Little surprise that we find the anglophile Hidayatullah holding a line harder than the conservative Gajendragadkar in matters of territorial acquisition after decolonisation.²⁹ Nevertheless, all laws in India get oxygen from our written Constitution.

B Common Law and the Colonial Continuity

VP Menon – Constitutional advisor to India’s last British Governor General – noted: the British ‘came to trade, but stayed to rule. They left of their own will; there was no war, there was no treaty – an act with no parallel in history’.³⁰ India became a fully independent dominion by an Act of the British Parliament, the Indian Independence Act, 1947. The Indian Constitution article 147 therefore defined the ‘interpretation’ of the Constitution of India to specifically include the reading of the Indian Independence Act, 1947. Legally, as Nariman says, India did not reject common law under its Constitution.³¹ Yet, as Madhav Khosla says, India did not become a case of a ‘thoughtless duplication’ of British laws.³²

The Indian Constitution has made the Indian Supreme Court the final authority on the reading of the Indian laws.³³ The Court has the authority to interpret the reception of international law by the municipal courts. At the core of the Indian Supreme Court’s foot in the door on international law matters is India’s common law tradition as well as the continuity of the colonial laws, precedents as well the various codes passed for the Indian colony after 1857, guaranteed by the Indian Constitution. Article 372(1) of the Constitution guarantees that ‘all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority’.³⁴ Article 372, if you will, gives Indian judges the licence to practice comparative legal hermeneutics. With the continuity of the colonial laws guaranteed by the Indian Constitution, the Indian courts have a large say in determining and affirming the executive’s international legal commitments made before 1947 that is embedded in common law.³⁵

In 1964, Justice Mudholkar framed the pressing issue of common law, municipal courts, and international law in clear terms. However, ‘would the position be different’, Justice Mudholkar asked, ‘where a particular rule of international law has been incorporated into the common law by decisions of courts?’ He noted:

Where Parliament does not modify or abrogate a rule of international law which has become part of the common law, is it open to a municipal court to abrogate it or to enforce it in a modified form on the ground that the opinion of civilized States has undergone a change and instead of the old rule a more just and fair rule has been accepted?³⁶

As a matter of ‘legal method’, a large chunk of the arguments before the Indian Supreme Court for judicial review of the executive actions in international matters are trojan horses for importing British and American precedents. The Indian Supreme Court has under common law kept its umbilical cord with the mother British law intact even as it consistently rejected, up until the 1970s, the revolutionary nature of the American precedents.³⁷ In a protracted hermeneutical battle of the law, while the executive since 1947 has been inspired by the American independence, the Supreme Court has defended the British common law as the true law for India.³⁸ At the core of finding a possible FRL in India rests the local postcolonial common law, the extent of judicial review of the executive function, and the constitutional bind on the executive’s competence in withdrawal from international legal obligations existing before 1947.³⁹

C The Supreme Court and Extradition of Aliens: Policy or Law?

One of the ways to detect an FRL, McLachlan says, is to evaluate the ‘question of the role of law in political matters, whether presented as a plea of non-justiciability, act of state or political question’.⁴⁰ Yet the foreign affairs exceptionalism cannot be wished away even in states where, to recall O’Connell, ‘the essential unity of all European legal structures, a unity founded on the moral concord of Western peoples’ is recognised. Let us see how the Indian Supreme Court has treated foreign states before it.

The Hans Muller case arose when the then West German Government requested the extradition of one Mr Muller for offences which he had allegedly committed in West Germany.⁴¹ Justice Vivian Bose was admittedly forced to ‘turn to a wider question’ bringing the Indian Supreme Court ‘to the fringe of International law’.⁴² The West German Consul at Calcutta had written to the West Bengal Government on 9 October 1954 requesting that the provincial Government issue a ‘provisional warrant’ of arrest against Mr Muller, keeping him in custody until the West German Government could initiate his extradition proceedings. On receipt of this letter, the West Bengal Government sent a note saying it would have ‘no objection’ in keeping Muller in ‘detention’.

Justice Vivian Bose disagreed with the executive, here the provincial government of West Bengal. He did not find ‘obvious’ within Indian law the Government Secretary’s proposal to keep Muller under detention and rejected the executive’s position as unfounded, conceding ‘[t]his may not be the law in all countries’.⁴³ Justice Bose thought that common law courts differed from civil law states in their deference to the executive action. In India, an executive action is governed by common law in the absence of express international law, here, between India and West Germany. Effectively, Justice Bose made a distinction between the common law and the civil law approach on the role of foreign states in domestic courts. Justice Bose rejected the Indian executive’s action on the detention of aliens ‘without the recommendation of a court’.⁴⁴ The Supreme Court nevertheless held in India the law is that the executive Government has ‘an unfettered right’ to expel foreigners.

In the Verhoeven, Marie-Emmanuelle case, the Indian Supreme Court had an opportunity to go back to the roots of India’s legal basis for foreign relations.⁴⁵ The Annexure to the Report of the Expert Committee No. IX on Foreign Relations contains a list of 627 treaties, conventions, agreements etc. entered into by the Government of India or by the British Government in which India or Pakistan or both were or are interested. This Annexure does not mention the Extradition Treaty between India and Chile. The precise legal issue in Verhoeven was whether the Expert Committee recognized the existence in 2016 of the extradition treaties between the United Kingdom and Chile, and therefore between India, the successor state to the British Indian government, and Chile.

Justice Lokur thought that all international agreements to which India (or British India) was a party would devolve upon the Dominion of India and the Dominion of Pakistan and, if necessary, the obligations and privileges should be apportioned between them. For the Supreme Court there existed ‘no limitation’ in the Indian Independence (International Arrangements) Order of 14 August 1947 in that it was ‘only with regard to the 627 treaties’ mentioned by the Expert Committee on Foreign Relations; rather the reference was to ‘all international agreements’.⁴⁶

IV Exclusion of Foreign Relations from Judicial Scrutiny

Foreign relations remain excluded from the purview of the Court thereby depositing it into the domain of ‘policy’ and, consequently, excommunicating it from the province of the law. The actual power of the executive and its primary competence in the field of international affairs suggest that sovereignty remains an important principle. Other common law jurisdictions would not be very different. Prime Minister Nehru, Thiruvengadam says, ‘was an ardent champion of judicial review and independence’ but at the same time he firmly ‘believed that it was Parliament and the government of the day which would have the final say on policy decisions’.⁴⁷ And under ‘our jurisprudence’, Nariman reminds, ‘a law can be enacted by the Parliament or state legislature but generally it comes into effect only when brought into force by a notification of the Government’.⁴⁸ Needless to add, foreign relations stand excluded from judicial scrutiny in India even as the executive could stall law-implementation on the technical ground of non-notification.

The only way ‘foreign relations’ as a policy could be brought within the pale of the law is by adjudging the extent of a possible judicial review of the executive actions. I discuss below, in subsection IV.A, the Court’s reading of the UN Charter. Finally, this section studies the ‘political thicket’ question examined by the Indian Supreme Court in the Sikkim case.

A The Indian Supreme Court and the UN Charter

So far, we have walked through Indian case laws keeping in mind McLachlan’s exposition of an FRL. One of McLachlan’s stresses is upon the reception and treatment of international law in domestic courts. In this section, I will examine the Indian Supreme Court’s treatment of an important regime of international law – the UN Charter.

India sent forces into Goa after the ICJ in the Right of Passage case ruled against Portugal having any military right of passage through Indian territory.⁴⁹ The British government at the time did not recognize India’s de facto control of Goa in law (de jure). The Monteiro litigation before the Indian Supreme Court originated from the Goa situation where Father Monteiro having overstayed his residence permit did not apply for the Indian passport.⁵⁰ His other options were to either exit the territory of India, or take the offer of the Indian passport without which he would become an illegal ‘alien’ in Goa. India called her annexation lawful and valid. ‘Annexation may sometimes be peaceful’, Justice Hidayatullah reasoned,⁵¹ ‘as for example, Texas and Hawaiian Island were peacefully annexed by the United States or after war, as the annexation of South Africa and Orange Free State by Britain’.⁵²

When a title to the new territory actually begins is not an easy question to answer. Since the ‘military engagement’ in Goa was only ‘a few hours’ duration’ and ‘there was no resistance at all’, Justice Hidayatullah ruled: ‘true annexation followed here so close upon military occupation as to leave no real hiatus’.⁵³ According to Justice Hidayatullah,

[t]he occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest and subjugation. It must be remembered that Mr. Gardiner, counsel for Father Monteiro, concedes that the annexation was lawful. Therefore, since occupation in the sense used in Art. 47 [of Convention IV⁵⁴] had ceased, the protection must cease also. We are, therefore, of opinion that in the present case there was no breach of the Geneva Conventions.⁵⁵

The Indian justification of Goa’s annexation lay in Goa being a Portuguese ‘blue-water’ province.⁵⁶ Due to India’s brush with Portuguese colonialism in the Right of Passage case,⁵⁷ the decade that followed presented a change in the way Indian judges looked at international law. India had sent the Bombay High Court Chief Justice MC Chagla to sit as judge ad hoc on the Right of Passage bench.⁵⁸ A cosmopolitan Nehru at the time suddenly woke up to the reality of India’s incomplete decolonization. The fact that Goa, Dadra, and Nagar Aveli continued to be governed by Portugal meant India stood between Lisbon and Portugal’s ultramar province, Goa.

While India also stood between Pakistan’s two overland provinces East Pakistan (now Bangladesh) and West-Pakistan (now Pakistan), New Delhi did not view these two situations, overseas and overland provinces, similarly. Portugal, in Nehru’s words, presented the vestiges of colonialism, particularly after France had returned Pondicherry to India by a treaty and Britain by passing a domestic law. Judge Hidayatullah’s reading of the UN Charter naturally acquires significance then. Judge Hidayatullah asserted:

Some would make title depend upon recognition. Mr. Stimson’s doctrine of non-recognition in cases where a State of things has been brought about contrary to the Pact of Paris was intended to deny root of title conquest but when Italy conquered Abyssinia, the conquest was recognized because it was thought that the state of affairs had come to stay. Thus, although the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (Art. 2 Para 4), events after the Second World War have shown that transfer of title to territory by conquest is still recognized.⁵⁹

We can see that the Indian Supreme Court finds the Indian Constitution, and not the UN Charter, is the applicable law in India. The reference to international law and treaty in article 51 of the Constitution only gives a ‘policy’ nudge to the Indian executive offering no ‘law’ to be applied. In December 1960, India’s agent before the ICJ in the Right of Passage case, MC Setalvad ‘expressed the opinion that there was no legal impediment in incorporating the liberated Portuguese territories into India’.⁶⁰

B The Sikkim Case: The ‘Political Thicket’ Question

On 8 May 1973, the King of Sikkim, the Government of India, and leaders of the political parties representing the people of Sikkim entered a tripartite agreement.⁶¹ Sikkim finally became a province of India in 1975. Justice LM Sharma thought the issue of Sikkim joining India was subject to the ‘political questions doctrine’. In other words, ‘the questions raised in the petitions pertaining’ to the ‘terms and conditions of accession of new territory are governed by rules of public international law’ and they are as such ‘non-justiciable’ on the ‘political questions doctrine’.⁶² The territory of Sikkim was admitted into the Indian Union by an act of voluntary cession by the general consent of its inhabitants expressed on a Referendum.⁶³ The Court invoked the American case Baker v. Carr.⁶⁴ According to the Indian Supreme Court, the effect of Baker v. Carr ‘is that in the United States of America certain controversies previously immune from adjudication were held justiciable and decided on the merits. The rejection of the “political thickets” arguments in these cases marks a narrowing of the operation of the doctrine in other areas as well’.⁶⁵ ‘The submission is further that’, the Court noted, ‘since the terms and conditions on which Sikkim was admitted in Union of India, are political in nature, the said terms and conditions cannot be made the subject matter of challenge before this Court because the law is well settled that courts do not adjudicate upon questions which are political in nature’.⁶⁶ In the Sikkim case, the Supreme Court moved away from Mithibarwala in that the Court was now open to borrow from common law jurisdictions other than England.

Sikkim joined the Union of India by an international agreement. Irrespective of this agreement, as the later Judge of the ICJ Rosalyn Higgins noted, the UN Human Rights Committee ‘questioned’ if the treatment of Sikkim, ‘which had been overrun by force and incorporated within India, was compatible with self-determination’.⁶⁷ Although the Indian Supreme Court decided the Sikkim case four years after Higgins wrote about Sikkim’s merger into India, Western scholars often fail to draw a distinction between India’s takeover of Goa, a colonial province of Portugal, and Sikkim, an independent Asian kingdom that joined India by an international agreement and a subsequent constitutional process.

Generally speaking, if the Western opinion could so easily question a full political process expressed in the referendum in favour of joining India, and the later incorporation effected under the Constitution of India as ‘overrun by force’ and not ‘compatible with self-determination’, it is not difficult to argue that India does not see its Constitution and common law having ‘a unity founded on the moral concord of Western peoples’. No wonder justice Mudholkar thought ‘the law of a State can only be modified or repealed by a competent legislature of the State and not by international opinion however weighty that Opinion may be’.⁶⁸

Generations of Indian jurists have worked overtime to cultivate and harvest British laws in postcolonial India.⁶⁹ And yet a constitutional reading of international law has remained in the Commonwealth a one-way traffic of precedents and scholarship exposing its imperial bias, the periphery never educating the centre. One does not need to remind that foreign relations are based on reciprocity. There remains an absence of references and reciprocation to Indian case laws on foreign relations in the standard FRL textbooks.

V The Indian Constitution and Uti Possidetis

The Indian Constitution doubtless gives the law that the Indian Supreme Court applies. The taking and giving of territory by India too is governed by the Constitution. Territory as defined in the Montevideo Convention is central to the existence of a modern state.⁷⁰ Add to that the doctrine of uti possidetis that instructs former colonies to keep territories and honour boundaries they have received from their colonial masters. But the uti possidetis principle needed a reading by the postcolonial Supreme Court since the colonial masters had defeated in India – by slicing British India into two states – this principle. The new post-colonies bordering India, here Pakistan, went into a further break-up of its territories, creating new sovereign boundaries. This geopolitical situation led India to a constitutive (through the Indian Constitution) and a declaratory (by the executive) re-perfecting of its uti possidetis in the way discussed below.

A Constitutional Perfecting of Uti Possidetis

In 1959, the President of India wrote to the Indian Supreme Court for an advisory opinion about the questions of law that might arise relating to the Berubari Union as well as the Agreement relating to the exchange of Enclaves with Pakistan.⁷¹ In the Berubari opinion, Justice Gajendragadkar wrote that, on a ‘true construction’ of article 1(3)(c) of the Indian Constitution, it was erroneous to assume that it confers specific powers to acquire foreign territories.⁷² This opinion noted that cession of national territory in law amounts to the transfer of sovereignty over the said territory by the owner-State in favour of another State.⁷³ Justice Gajendragadkar spoke of, if you will, an implied uti possidetis. For him,

It may be that this provision has found a place in the Constitution not in pursuance of any expansionist political philosophy but mainly for providing for the integration and absorption of Indian territories which, at the date of the Constitution, continued to be under the dominion of foreign States; but that is not the whole scope of Art. 1(3)(c). It refers broadly to all foreign territories which may be acquired by India and provides that as soon as they are acquired they would form part of the territory of India. Thus, on a true construction of Article 1(3)(c) it is erroneous to assume that it confers specific powers to acquire foreign territories.⁷⁴

The Government of India in Berubari surprisingly did not make a distinction between boundary adjustment and cession. Nevertheless, exactly a decade later, in Maganbhai,⁷⁵ Justice Hidayatullah accepted and confirmed the distinction the West Bengal provincial government had made in Berubari between boundary adjustment and cession:

The argument that if power to settle boundaries be conceded to the Executive, it might cede some vital part of India is to take an extreme view of things. The same may even be said of Parliament itself but it is hardly to be imagined that such gross abuse of power is ever likely. Ordinarily an adjustment of a boundary which International Law regards as valid between two Nations, should be recognised by the Courts and the implementation thereof can always be with the Executive unless a clear case of cession is involved when Parliamentary intercession can be expected and should be had. This has been the custom of Nations whose Constitutions are not sufficiently elaborate on this subject.⁷⁶

‘The power to legislate in respect of treaties lies with the Parliament’, Justice Hidayatullah continued, ‘[b]ut making of law under that authority is necessary when the treaty or agreement operates to restrict the rights of citizens or others or modules the laws of the State’. Very importantly, ‘[i]f the rights of the citizens or others which are justiciable are not affected, no legislative measure is needed to give effect to the agreement or treaty’.⁷⁷ Since international law falls within the non-justiciable article 51, rights of the citizens and that of the aliens, legal or illegal, stem from India’s written Constitution.⁷⁸

B Declaratory Perfecting of Uti Possidetis

While India signed an agreement to welcome Sikkim into the Union of India, almost at the same time, in 1974, the Government of India declared to accept the compulsory jurisdiction of the ICJ ‘in conformity with paragraph 2 of article 36 of the Statute of the Court, until such time as notice may be given to terminate such acceptance, as compulsory ipso facto and without special agreement, and on the basis and condition of reciprocity, the jurisdiction of the ICJ over all disputes other than’ those mentioned in the Swaran Singh Declaration.⁷⁹ Paragraph 10 of the declaration noted India’s exclusion from the ICJ’s jurisdiction:

disputes with India concerning or relating to:

1. (a) the status of its territory or the modification or delimitation of its frontiers or any other matter concerning boundaries;

2. (b) the territorial sea, the continental shelf and the margins, the exclusive fishery zone, the exclusive economic zone, and other zones of national maritime jurisdiction including for the regulation and control of marine pollution and the conduct of scientific research by foreign vessels;

3. (c) the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it;

4. (d) the airspace superjacent to its land and maritime territory; and

5. (e) the determination and delimitation of its maritime boundaries.

Paragraph 11 of the declaration made it retrospective. India tactically declared its exclusion of the ICJ jurisdiction, in 1974, right before the Third UNCLOS conference began. Why? Might paragraph 10(c) of India’s declaration answer this? The declaration excluded from the ICJ disputes about ‘the condition and status of its islands, bays and gulfs and that of the bays and gulfs that for historical reasons belong to it’.

India thus secured its uti possidetis in the sea before the UN Convention would fix the substantive content of the law of the sea ( the UNCLOS) putting India’s possessions in the sea beyond the UNCLOS.⁸⁰ India has submitted a new Declaration on 27 September 2019 replacing the 18 September 1974 Declaration. In 2019, a new Jaishankar Declaration excluded from the ICJ’s jurisdiction ‘disputes where the jurisdiction of the Court is or may be founded on the basis of a treaty concluded under the auspices of the League of Nations’.⁸¹ By excluding from the ambit of the ICJ’s compulsory jurisdiction in 2019 ‘disputes with the government of any State which is or has been a Member of the Commonwealth of Nations’ India has attempted to put its residual uti possidetis beyond the ICJ’s adjudication.⁸²

VI Conclusion

The ‘decisions of the Privy Council’, as Fali Nariman reminds us, ‘are called “opinions” because they are in the form of advice to the English Monarch’ while the decisions of the House of Lords were known as ‘speeches’.⁸³ Nehru had accepted Sir BN Rau’s formulae to stay within the Commonwealth as a ‘Republic’ without recognising the British Monarch’s moral, legal or political authority.⁸⁴ Should the British ‘opinions’ to the Monarch and ‘speeches’ in the House of Lords pre-cast in common law become ‘applicable law’ in India after 1950? Purshottam Tricumdass, counsel in Mithibarwala, had suggested that the Indian Supreme Court ‘discard the theory of public international law that underlies the decisions of the Privy Council’ in favour of ‘the more rational, just and human doctrine’ of the ‘American decisions’. His ‘thesis’, in the words of Justice Ayyangar, ‘was that the doctrines evolved by the Privy Council were conditioned by Britain being an Imperialist and expansionist power at the date when they originated and were applied’ and that ‘these might have been suited to the regime of a colonial power’ alone.⁸⁵

In exporting FRL, scholars from common law states seemingly exhibit a lack of sensitivity for the history of common law in British colonies. But for colonialism, common law surely could not have visited India or the other British colonies. The countries that did not suffer British colonialism chose the continental law without exception!⁸⁶ In fact for Nariman ‘common law’ is not so much a ‘law’ as it is a ‘unique method of administering justice’ or, might I add, injustice. After centuries of the reception of the British common law, FRL as a new call to collapse public international law with domestic law appears an innocuous innovation only because, as noted before, the FRL scholars overlook the colonial history of common law that jurist Nariman as well as economic historians Acemoglu, Johnson and Robinson point at.

In order to ossify the native sovereignty, the nineteenth century British colonial scholars had argued for an imperial law that was neither international law nor domestic law. Sitting in a post-colony like India, transnational law and FRL appear twins divided by time. In the twenty-first century, FRL scholars argue for a composite ‘doctrine derived from public international law, private international law and municipal English law’.⁸⁷ An uncritical growth of FRL happens solely because such an ‘Anglo-commonwealth’ FRL does not yet recognise law, common law or civil law, of the geographical South as worthy of export. India has gone on a borrowing binge for far too long and an FRL is least desirable in a legal environment of the one-sided traffic of precedents. The common law’s unwillingness for learning is not limited to her intellectual apathy for Britain’s ex-colonies but extends even to continental law for which O’Connell had exhorted ‘the essential unity of all European legal structures, a unity founded on the moral concord of Western peoples’.

But India has inherited a British ‘legal structure’ without ‘a unity founded on the moral concord of Western peoples’. FRL for India remains a moral platitude of the sort O’Connell talked about in relation to Europe and England. Besides being anthropologically challenged, FRL reverses normative decolonisation while claiming to offer a bigger basket of problem-solving.

Many foreign relations issues emerge because of India’s marriage to common law. The twenty-first century FRL then appears to uncritically mimic the two older common law projects; ‘imperial law’ of the nineteenth century Britain and ‘transnational law’ of the twentieth century post-war United States. We may wish to go by our written Constitution without needing, or having found, a ‘foreign affairs’ law. Shakespeare famously wrote ‘what’s in a name’. McLachlan and Bradley think otherwise; everything is in the name. The name is ‘foreign relations’ law. Not for India, however. Since 1950, it is constitutional law in New Delhi.

6 Foreign Legal Policy As the Background to Foreign Relations Law? Revisiting Guy de Lacharrière’s La politique juridique extérieure

Frédéric Mégret

The study of foreign relations law has been largely devoted to domestic laws as they affect foreign policy.¹ An element seems to be missing, however, somewhere between domestic and international law that is reducible to neither the constraints of domestic or international law on foreign policy. Although that element may simply be the national interest, the latter seems too crude a variable to explain alone how countries navigate not just their foreign policy generally, but its many legal dimensions specifically.

A more discreet strand of thought has looked at how national policies in relation to international law are formulated. This could be seen as including the quite specific but rich genre of writing on foreign policy legal advice and advisors (which has both a foreign policy law allocation dimension, and a foreign legal policy element)² although what this chapter is interested in is arguably broader and not necessarily as personalised. The key intuition here is that a state’s foreign policy is reducible neither to compliance with international law (as international law insists), nor to the constraints imposed by domestic law on foreign policy (as foreign relations law sometimes implicitly claims). The elaboration of the law of a state’s foreign relations – rather than foreign relations law, strictly speaking – is certainly influenced by international law but is not reducible to compliance with it (even a policy of compliance with international law can be understood as a domestic policy rather than just obedience to international legal diktats). In between domestic and international law, then, lies a vibrant practice of defining what a state’s policy towards international law should be that can be understood to be a central part of the definition of the law of foreign relations, albeit not strictly what is conventionally understood as ‘foreign relations law’.

France may be an intriguing country to look for clues as to how to conceptualise such policies. Foreign relations law as a discipline is often seen there as a US oddity. Moreover, it is one that is seen as standing in real tension to a commitment to public international law and even as having echoes of earlier denials of its very existence – international law as really only the accumulation of the externally oriented facets of domestic law. This is particularly clear in the French perspective where the emphasis on the primacy of international law is historically combined with a very strong insistence on monism. Georges Scelle even went as far as claiming that the state had no particular pride of place, as international law was, fundamentally, not that different from domestic law.³ Nonetheless, France, perhaps unsurprisingly for a country with a strong republican and Jacobin tradition, has also produced its own approach to the law of foreign relations, if not quite ‘foreign relations law’. Rescuing that tradition that has been somewhat neglected in contemporary foreign relations law scholarship can help understand the US approach as less idiosyncratic than it is sometimes presented as being, but also help appreciate how different approaches inevitably betray different conceptualisations of the relationship of the state to international law.

Published in 1983, Guy Ladreit de Lacharrière’s La politique juridique extérieure⁴ was a highly unusual book by the standards of both French international law academia and the French diplomatic service. De Lacharrière was by then a former legal advisor to the Quai d’Orsay, the seat of the foreign ministry. The book was relatively short (around 200 pages), lightly footnoted in a way that at times suggested off-the-cuff remarks rather than a standard academic treatment, but erudite and theoretically provocative. It came with the credibility and aura of de Lacharrière’s experience. It seemed to pull the curtain on the making of international law in the twilight of a higher civil servant’s career. It can be seen as part of a small but highly distinctive and illustrious tradition of monographs written by international lawyers with intense exposure to the state practice of international law.⁵ Indeed it was praised at the time for seeming to combine in one the qualities of ‘Le Sage, le Prince et le Savant’.⁶ In its emphasis on state practices it has been analogised with some of the earlier work of the Russian Grigory Tunkin,⁷ but it also bears mentioning that La politique juridique extérieure bears some affinity with Wilhelm Grewe’s Spiel der Kräfte in der Weltpolitik⁸ published at about the same time.

At the same time, the book remains somewhat obscure and a little heretical. It has never been republished since 1983 and is increasingly hard to locate outside specialised libraries. It is little known outside France, where its place is sometimes hard to gauge, and even harder to situate in a global context.⁹ It has of late become the object of renewed interest, at least in francophone academic circles.¹⁰ Although Guy de Lacharrière was described recently as ‘l’un des plus grands jurisconsultes français du XXe siècle’,¹¹ this was, perhaps tellingly, in the Annuaire français de relations internationales rather than the Annuaire français de droit international, and by two young French public international lawyers but associated with the Centre Thucydide, which is devoted to the study of international relations. For all these reasons, de Lacharrière’s book deserves a broader recognition for its contribution to our knowledge of international law ‘from the inside’, even as one must speculate about his relative lack of influence.

De Lacharrière had had a prestigious career by the time the book was published. He had graduated first of the concours of the Ministry of Foreign Affairs. He spoke Russian fluently and one of his first postings was in the French embassy in Moscow (1946–8). A significant part of his career was devoted to France’s relationship to international organisations, including the UN and UNESCO. However, he is most keenly remembered as the legal adviser to the foreign ministry from 1969 to 1979. His most significant exposure to the trade of international law arose when he represented France at the 3rd UN Conference on the Law of the Sea that gave rise to UNCLOS, from 1979 to 1982. He had earlier on also been involved in the creation of the UNCTAD and the GATT. Subsequently, he would become a judge at the International Court of Justice and even the court’s vice-president.¹²

De Lacharrière was, revealingly, never a legal academic; rather, he was a career civil servant and diplomat who sought to theorise a certain praxis of international law. Contra an international lawyers’ international law (‘les commentateurs’), he opposed, fundamentally, a domestic civil servant’s international law (‘les décideurs’).¹³ This chapter will re-examine this contribution in a contemporary light, weighing it against the monist and universalist assumptions of French foreign legal policy. Within the broader field of foreign relations law, the work of Guy de Lacharrière is hard to categorise. Rather than seeing foreign relations as constrained by the domestic law framework or, for that matter, international law itself, de Lacharrière saw it as being above all determined by what he described as a state’s ‘foreign legal policy’.

I The Primacy of Foreign Legal Policy

La politique juridique extérieure insisted on the centrality of the relationship between the state and its ‘exterior’, and argued for a voluntaristic and strategic legal foreign policy. In particular, it suggested, that if international law was international law it was because states had a ‘legal foreign policy’ – international law’s law-ness was not immanent or metaphysical but embedded in states’ defence of the national interest, opportunistic as it might be. In de Lacharrière’s view, foreign legal policy towards international law was not itself entirely or even particularly determined by domestic law, as much as by concern with the national interest.¹⁴

His contribution to foreign relations law was therefore much less notable than his work on states’ politics of international law. If anything, he tended to see foreign policy lawyers as involved in strategising about international law itself, anticipating its changes, trying to soften contradictions between positions adopted by their state over time, and understanding how evolutions in international law might affect them. In other words, the crucible of foreign relations law lied in the encounter between the national interest and the particular proclivities of the international legal order, a space that was dominated neither entirely by international law (as some academic international lawyers might imprudently presuppose) nor the national interest (as realists were too quick to conclude).

According to one of La politique juridique extérieure’s most recognisable and paradoxical formulas: ‘before international law, there are national policies towards international law’,¹⁵ this is reminiscent of the chicken-and-egg debate on the primacy of sovereignty or international law or of practice over opinio juris. But how can there be a politics of international law before international law itself? What Guy de Lacharrière rejected above all was a vision of the priority and primacy of international law, one in which law ‘serait reconnu comme étant d’une nature sacrée qui le voue au respect des gouvernements et le met au-dessus des manipulations politiques. Considéré sous l’angle d’une telle dévotion, il ne pourrait faire l’objet de politiques gouvernementales’.¹⁶ This is what might be understood as the ‘immanent’ conception of international law, and it is of course quite widespread.¹⁷ It would tend to view the idea of a ‘foreign legal policy’ as ‘sacrilegious’.¹⁸ At the opposite extreme is a particular extreme form of the realist critique, one that would be so dismissive of international law as to find futile any notion that states have a policy towards it. As de Lacharrière puts it, ‘le droit ne mériterait pas l’honneur qu’on lui ferait en ayant une politique à son égard’.¹⁹

Guy de Lacharrière doubted that either school reflected the practice of statecraft (as opposed, perhaps, to the scholarship of international lawyers) or was seriously entertained by those actually entrusted with safeguarding states’ foreign policy legal interests. Rather than each position being represented in its pure form, however, either might taint the foreign legal policy of given states at any given moment based on its interest. This is a striking notion: the idea that views about international law are themselves influenced by a sort of jeu de masques that leads states to adopt the views that they need under the guise of interpreting international law. Even the insistence on respect for international law, in that context, could be understood as a foreign policy option, associated with an a priori in favour of the status quo. By the same token, too blatant an instrumentalisation of the law would be self-defeating: even realists know that if they play the international law game, they need to play it at least half-heartedly, or expose the mediocrity of their arguments.²⁰

At any rate, foreign legal policy did not exist in a void and was not autonomous; it existed at the discretion and in relation to a broader national interest. The power of states was an evident element in the determination of their foreign legal policy. All other things being equal, weak states were likely to consider that an international rule of law was more advantageous; by contrast, powerful states would have a great ability to resist or withstand a finding that they had violated international law.²¹ Another factor was, quite simply, the psychology and even training of those deciding in any given country and whether they were convinced of the usefulness of international law or not (although de Lacharrière noted that Nixon was a lawyer and Eisenhower a military man).²² This is not necessarily a rejection of ‘foreign relations law’, but in its conspicuous ignorance of domestic law, it is an implicit claim that runs throughout the book about a certain exceptionality of foreign policy when it comes to domestic law.

For Guy de Lacharrière, domestic factors were quite key in explaining national variations between states.²³ The continuity of governments or something as trivial as the availability of archives were key in evaluating the risk of incoherence in foreign legal policy-making and dealing with it.²⁴ Perhaps more importantly, the place of law within national legal institutions stood out as relevant. For some states, the rule of law was highly important, and this was bound to have an impact: a state that despises law domestically is unlikely to embrace it internationally, for example.²⁵

The constitutional framework did matter of course but only indirectly and because of its potential to shape foreign legal policy. Although foreign policy in France was a prerogative of the president, treaties stood to be adopted by the Assemblée nationale and to become law as soon as ratified. For monist states, the exact content of a treaty mattered all the more given the lack of an opportunity to subsequently adapt it into domestic law. At the same time, the absence of common law style judicial review meant that it was unlikely that France’s treaty obligations would, having satisfied an a priori contrôle de constitutionnalité, be contested by domestic courts. This is, in turn, in contrast to common law states that are often wary of implementing their treaty obligations in domestic law lest the treaties be challenged before ordinary courts. However, de Lacharrière was well aware that in both monist and dualist countries the force of international law was not such that its violations were typically treated on a par with domestic law violations. If anything, violations of international law took importance because they were seen as also violations of domestic law.²⁶

In short, the domestic element in foreign legal policy was not absent (for example, the book mentions the fact that new revolutionary governments sought to distance themselves from previous governments),²⁷ but it was not particularly causal from a social scientific point of view. This may be because de Lacharrière understood, rightly as it turns out in most states, that aside from procedures of ratification, much of the legal national interest stood to be defended and even defined by the executive. Treaties were negotiated by diplomats; the decision to use force was made in the highest reaches of the state; the day-to-day conduct of relations with other states and international organisations was entirely in the hands of foreign ministries. If anything, it was the international environment that shaped the conduct of foreign legal policy, an environment that was significantly more political than legal. This was of course nowhere truer than in Fifth Republic France and de Lacharrière may have been guilty of universalising on the basis of what was in the end a fairly atypical constitutional environment. That evaluation would also stand to be relativised since the publication of La politique juridique extérieure, in an era marked by increasing efforts to coordinate foreign policy at the European level, parliamentary scrutiny and civil society monitoring.

Yet foreign legal policy was also not simply the translation of the national interest into an international law policy; rather, it was more broadly a governmental policy on international law. An example of such a policy, paradoxically, was that of states that had decided to oppose international law generally, whether newly independent or ideologically radical (the USSR, Iran, etc.).²⁸ In such a case, foreign legal policy could touch upon even the most fundamental aspects of international law, including state succession or the formation of customary international law. In addition, states might have a sectoral foreign legal policy concerned with particular aspects of international law only. It seems Guy de Lacharrière had in mind mostly primary rules of international law, notably the law of economic relations (including nationalisations), the law of the sea or international humanitarian law. Although states wanting to transform international law might stand out, de Lacharrière insisted that states bent on maintaining the status quo had as much of a foreign legal policy as the revolutionaries – simply that it was less visible.²⁹

For Guy de Lacharrière what was striking was that no one had thought of this before and indeed that La politique juridique extérieure was not the object of any particular study or, for that matter, a term of art. There were isolated exceptions of course, among which John Foster Dulles³⁰ and Stanley Hoffmann’s notion of legal strategy.³¹ But the topic was not taught in universities. De Lacharrière did not designate who was responsible for this lack of interest, but at times it seems quite clear that the culprit was international law itself (‘une discipline abstraite’), understood as a system of constraints rather than the product of uncoordinated policies that take it seriously but are not reducible to it (‘la discipline concrète’).³² To de Lacharrière, this would be the equivalent of teaching international relations only without teaching foreign policy, where the study of foreign policy has, in fact, preceded the study of international relations as its own discipline. It is almost as if the study of international law had it the wrong way round: studying the system, before it has even begun to understand its agents’ rationalities.

In trying to conceptualise the place of La politique juridique extérieure in relation to the paradigm of ‘foreign relations law’, then, the point might be that international law was much more significant to the conduct of foreign policy than domestic law, only not in the way that most international lawyers understood. International law was not important because it bound states, but because it provided executive branches with sophisticated opportunities to maximise the national interest, opportunities that they would be wise to understand and not ignore. Rather than an alternative to foreign relations law, La politique juridique extérieure is better understood as a complement to it or, even better, an inherent part of it and provides opportunities for dynamic reconceptualisation. Foreign legal policy includes both an attention to foreign relations law stricto sensu (domestic law) and to international law and, indeed, requires that one keeps an eye on how the gambits one makes on one level may ricochet on the other. Where foreign relations law as it is conventionally understood is at risk of reducing international lawmaking to a domestic entre soi, foreign legal policy could be understood as operating more on the interface of the domestic and the international.

II The Role and Function of Foreign Legal Policy

For Guy de Lacharrière the strength of having a foreign legal policy was that ‘elle tend à substituer un ensemble d’actions préméditées à des comportements qui, autrement, procéderaient de la spontanéité, du réflexe, de l’instinct’.³³ Governments should not adopt positions merely on a reactive and knee-jerk basis; rather, they needed to organise themselves so as to maximise their interest over time by carefully strategising about their legal policy. However, the catch was that for de Lacharrière the national interest included a moral as well as material dimension, both on image grounds but also because, for example, even a bias in favour of the ‘règne du droit dans l’ensemble de la société internationale’ could turn out to be beneficial for a particular state from the point of view of its own, narrow national interest.³⁴ Of course, this portrayed such commitments in quite a different light than how they portrayed themselves: not some sort of Kantian a priori commitment to the law as an incarnation of reason, but a somewhat interested commitment to the law as a form of protection. Still, the grounding of support for an international rule of law in the national interest made it seem much less utopian.

In that light, states typically sought to both inscribe themselves within international law and push it in a direction that was favourable to them. Guy de Lacharrière could not fail to have been impressed as legal adviser to the French foreign ministry by the vast movement of challenge of international law that had arisen in the two previous decades as a result of the rise of the Third World. He was less inclined than some to describe what they did as ‘political’ and what Western states did as ‘legal’. Instead, he expressed a certain understanding for their aspiration to transform international law from an oligarchic and confiscatory system into a more equal and participatory one.³⁵ Even the Soviet notion of international law as an instrument of class coercion found favour in principle with de Lacharrière (whose own political sensitivities one imagines to have otherwise been quite remote from material determinism), since it had the merit of expressing a clear sense of ‘interest’ in international law.³⁶

For Guy de Lacharrière, the ‘national interest’ in international law arose not purely domestically, but in relation to the interests of others. The national interest was a ‘preference’ for the state’s own well-being over the well-being of others. Yet, to be taken seriously, it also had to be enunciated in ways that resonated with the system. In the process, they would seek to pass off their national interest as entirely compatible with the common good.³⁷ This was perhaps a very French way of identifying the national and universal interests as coinciding. But even the most radical turn in international law (such as the one argued for by the Third World in the 1960s) was likely to be justified as consonant with the interest of the international community. The ability to speak the language of the common interest, then, was crucial to states’ success in promoting their vision of international law.

At times, though, the incompatibility of one’s national interest with the national interest of others would be hard to ignore, in which case one’s interest might simply be claimed to be superior. Particularly revolutionary projects in international law had been less prone to underline the consensus, and more ready to highlight the element of struggle involved in international law.³⁸ Imperialism and aggression are, however, always on the other side. And in the end, de Lacharrière entertained little doubt that his fellow practitioners of international law on behalf of states implicitly acknowledged that each of them was championing a national cause, and that there would not be much use in pretending that this was otherwise. Every state tended to see the proclamations of innocence of others as merely self-serving, perhaps only because they subtly knew their own proclamations to be so.

How should one go about – if at all – reconciling opposite national interests? Guy de Lacharrière was sceptical that a formula existed that could easily be relied on. To be sure, chairs in international conferences would not tire of insisting on the importance of ‘equitable and reasonable compromise’.³⁹ But who was to say what such a compromise entailed? How far should individual negotiators go in taking into account the interests of others? What if the opening position of one party had been plainly unreasonable? And how might each convince herself that the interest represented on the other side was as respectable as her own? And if the notion of compromise is so ambiguous, then how much of an obligation to compromise can there be? As de Lacharrière put it, ‘les affirmations d’ouverture au compromis colorent donc de courtoisie l’antagonisme des préférences nationales mais en confirment surtout l’existence sans en réglementer précisément l’issue’.

Instead, the effect of foreign legal policy was to distribute the advantages and disadvantages of international law. States typically wanted to have their cake and eat it and to hold others to standards that they sought to escape for themselves. A government will be intransigent vis-à-vis the need for a manifestation of its own voluntarism, but adopt a more relaxed attitude when it comes to the consent of other states. It will protest other states’ use of their veto at the Council, but will be very understanding of its own. States will formulate apparently general rules in terms that happen to narrowly suit their own characteristics. The game is a game of passing off one’s interest as the general interest, but it is a ‘game’ nonetheless, with its rules and constraints and, indeed, its risks and dangers. For example, every rule or interpretation thereof that one puts out there is likely to be used by one’s ‘enemies’. Here law can be seen to have a somewhat autonomous effect: rules imply corresponding obligations; obligations are understood to be symmetrical, etc. States must constantly bear in mind the risk that pushing a certain abstract position in international law will come back to haunt them.

Rather than the problem of incoherence in international law itself (a non-problem as far as de Lacharrière was concerned), what intrigued was the problem of incoherence within the foreign legal policy of states. Because of the evolving national interest foundation of all foreign legal policy, states might over time be called upon to argue the opposite of what they had previously argued. Indeed, they might occasionally simultaneously adopt opposite positions in different sectors of international legal regulation where their interests differed, or even on the same issue. (De Lacharrière cites the example of the lawyer of a Third World country who simultaneously favoured the equidistance and the equitable principles approaches to maritime delimitation ‘depending on which part of their coast’.⁴⁰) Would this doom their policy and expose them to the critique of contradicting themselves?

Although politically possible, legal incoherence could sometimes be paid with a high price. Newly decolonised states who strongly defended the principle of self-determination, for example, were sometimes caught at their own game when they had to insist that it was not available to Katanga or Biafra.⁴¹ Nonetheless, Guy de Lacharrière was sceptical that incoherence would be exposed as such, at least if it was managed well. There are, after all, many ways in which states can rationalise evolutions in their policies and distinguish the facts. They can make sure that they are evasive about why they have adopted certain options and avoid too onerous a judicial scrutiny and the threat of estoppel.⁴² As to other states, although they may temporarily exploit the sin of incoherence, they are likely to be understanding of a practice that they themselves partake in.

III Consequences for International Law

But what of international law in this context? Was it anything more than the aggregate of foreign legal policies and did that not point to its fundamental instability or even futility? One of the most striking conclusions of Guy de Lacharrière was that states – as opposed to academic international lawyers – had relatively little interest in international law in general. They might certainly have strident opinions on certain points of international law or claim a broad commitment to it (as in the recent Franco-German ‘Alliance for Multilateralism’), but no state would commit itself to some general concept of what international law stood for (or only in the broadest, most rhetorical terms).⁴³ The challenge for someone working at the intersection of foreign legal policy and international law – as had by then become de Lacharrière’s case given his ICJ functions – was to imagine what all this meant for the idea of international law, despite states’ best efforts not to do so. The simplest conclusion that de Lacharrière came up with was that the existence of foreign legal policies testified to international law’s existence:

Pour que le droit international n’existe pas, alors que les politiques nationales le prennent si constamment pour objet, il faudrait supposer de la part de l’ensemble des gouvernements un singulier pouvoir d’illusion quant aux réalités de la vie internationale et une extraordinaire capacité de s’acharner sur une pure chimère.⁴⁴

This sort of trope has long been quite familiar in discussions of international law and may not be much of a defence of the existence of international law. International law is detected indirectly through one of its effects, but this does not tell us much about whether it has any causal force or what it means to see it only through the eyes of its actors rather than, say, the perspective of the system. Moreover, international law’s content and structure are very uncertain even as Guy de Lacharrière never makes the move, conceptually, to an understanding of international law as a practice. He even ponders the possibility that there are ‘many international laws’ each existing, perhaps, only as a figment of the imagination of a particular participant.

More interestingly, de Lacharrière saw foreign legal policy as not only a passive response to an already existing international law, but as actively involved in shaping it. De Lacharrière could not imagine states that would merely ‘apply’ international law in good faith, without seeking to influence it. Such a position would be non sensical precisely because the content of the law stood to be determined by its subjects’ deliberations and determinations about it. In international law, ‘la distinction entre l’élucidation du droit positif et l’influence sur celui-ci est particulièrement émoussée’.⁴⁵ This is particularly true of treaty-making of course – where no actor pretends that they are just implementing international law since per hypothesis there is no law to implement yet – but it is also clear in relation to customary international law where states could be mindful that what they did might participate in the production of custom. They would, as a result, become deliberate customary agents, encouraging or impeding its formation. After all, the very notion of opinio juris makes it clear that what states think about a norm is crucial to it becoming a norm, perhaps one of the most striking recognitions, from the point of view of international law, of a form of at least de facto foreign legal policy.

In the end, Guy de Lacharrière found that foreign legal policies were efficient, precisely because international law was their product:

[le droit international] n’est donc pas à découvrir comme une science dont on chercherait à élucider les lois, mais à faire ou refaire. Il n’a rien de fatal et n’est donné ni par Dieu ni par la nature. Parfaitement contingent, il ne correspond à aucune nécessité transcendante mais à des convenances appréciées par des gouvernements que l’on peut désigner. C’est une politique qui a réussi, une stratégie qui a triomphé.⁴⁶

In fact, states had a chance to influence not only this or that rule of international law, but also its very function, subject of course to the limits of political reality.

International law might be felt as an imposed law, a constraint, by some states but that was only because it was the willed law of another set of states. This is also the source of one of its weaknesses. If international law was only the manifestation of the preferences of some states generalised to the world, then violating international law should cease to appear so scandalous. Violating international law might just be an instance of ‘l’opposition d’une politique à une autre’.⁴⁷ In fact, de Lacharrière noted that most states were not particularly shocked by violations of international law most of the time, and only pressed a point if it happened to conflict with their national interest: ‘une certaine non-application des traités bénéficie en fait d’une indulgence très générale comme si chacun comprenait fort bien, même s’il ne juge pas opportune de le dire officiellement, qu’il est imprudent de trop blâmer chez l’autre la recherche d’une liberté que l’on entend bien revendiquer pour soi’.⁴⁸

This notion of treaties as basically a useful technique to predetermine the future was fully compatible with frequent violations. This might seem like a fairly cavalier attitude to international law coming from a jurisconsult, but in Guy de Lacharrière’s mind it did not make the mechanism of binding treaties useless; it just made it useful in a way different than that commonly understood. States embraced treaties precisely because they saw them as flexible and because they could interpret their obligations in ways that would not compromise their interest. At the same time, the treaty form remained useful as long as there was a certain ‘taux de concordance’ between treaty provisions and actual behaviour.⁴⁹

In practice, did international law determine state behaviour? Guy de Lacharrière’s concern was not with such systemic questions as such; rather, he was more interested in the foreign legal policy question of how international law might enter into decision-making. At times, it would be a decisive factor (for example when two equally beneficial political outcomes were available), but it could also be one element among others. Even compliance with the law was in the end a strategic element to be taken into account by states strategically. More often than not, international law intervened as a justification of decisions that would most likely have been taken on other grounds, although it might temporarily succeed in making that justification appear as causal.⁵⁰ In short, the international lawyer was often called up after the decision; more rarely before the facts.⁵¹ But even the justification of decisions might ‘retroact’ on the determination of that decision, by at least affecting its modalities of execution.

The strength of de Lacharrière’s analysis of international law is threefold. First, he emphasises the role of the national interest in spurring international law. The national interest is not, as in the typical realist account, a limitation on the ability of states to comply with international law; rather, it is, more productively, an orientation that dictates the kind of international law that states want and can over time seek to obtain. In short, the national interest is productive of international law because it makes international law the sort of law that states can, precisely, live with. Second, the book emphasises the relatively decentralised nature of international law-making and its bottom-up character. Contra a view of states as mere conveyor belts for the injunctions of international law, it sees them as implicated in its production, all be it with their own interest in sight. In that respect, de Lacharrière was less interested in ‘respect’ for or enforcement of international law than in the creation of international law. Third, the book suggests the creativity and a priori undetermined character of international law. States do not know in advance what international law’s exact injunction is, at least until they have thrown their forces in the battle and sought to develop it in a direction that suits them. Contra the focus on adjudication, his emphasis on the living actors of international law – his role as legal adviser far more than his role as ICJ judge – is what makes for compelling reading.

In short, in being a theory of the international legal policy of states, La politique juridique extérieure could not avoid also being a theory of international law. Guy de Lacharrière foreshadows, in some ways, Martti Koskenniemi’s work on The Politics of International Law.⁵² Koskenniemi, in focusing on the more systemic level of international law does not start explicitly from what states’ foreign legal policy should be. But as himself a former legal advisor to a foreign ministry, he is keen to construct a theory of international law that understands it as the product – inchoate, contradictory and even circular – of various discursive practices by which international lawyers in a position to do so produce its meaning. Where de Lacharrière’s standpoint is one of moderate realism, Koskenniemi’s is based on a more systematic critique of international law itself: international law can only be this discursive practice not specifically because states treat it that way (although that is also no doubt true), but because states could only treat it that way. In that respect, La politique juridique extérieure is aligned and converges with that later and in many ways far more sophisticated body of work in at least one fundamental respect: that of the theoretical (and not just practical) primacy of the experience of the practitioner over a more academic and contemplative approach to international law. Where de Lacharrière innovates ‘in advance’ of From Apology to Utopia⁵³ as it were is in his willingness to share some of the tricks of the trade by which practicing international lawyers, confronted with contradictions of their discipline, act as its sophisticated managers, for the greater good of their state and, quite possibly, of the project of international law itself. There is no place in La politique juridique extérieure, however, for envisaging how this exercise might be more fundamentally liberating and open up emancipatory possibilities; only the certainty of how one might go about best serving one’s masters.

One common theme that runs through the book is, in that respect, the relative inadequacy of scholarly treatments of international law. Although Guy de Lacharrière was characteristically and typically diplomatic, he knew that his readership would be largely academic and that his views could be seen as a provocation to the French professorate. He noted, for example, that governments and their agents would be surprised to learn that academic international lawyers (such as Georges Scelle) thought of international law as attributing the state certain competencies, where their daily experience was surely that these competencies were very much the state’s in the first place and in no need of recognition from outside. He also noted in relation to treaties, for example, that ‘les recherches sur le caractère de dogme fondamental du principe pacta sunt servanda semblent un peu à côté de la question’.⁵⁴ However, de Lacharrière also saw the kind of distortions introduced by academic international lawyers as relatively minor as long as they were of marginal importance (and in his view no international legal theory ever created a significant obstacle to good foreign legal policy).⁵⁵

Indeed, Guy de Lacharrière did not let these imperfections of international law stand in the way of an overall positive evaluation of its incidence. He was aware that his book might be dispiriting for scholarly observers who had ‘the internal model’ of law in mind and who thought that international law should promptly be reformed to be something else than it currently was – presumably something more hierarchical and institutionalised.⁵⁶ The truth of the matter, however, is that international law is exactly where states want it to be, and no less useful for it:

le produit livré par les producteurs satisfait les consommateurs, qui sont identiques aux premiers. Les Etats, responsables du droit international, le sont aussi de ses ‘faiblesses’, de ses ‘carences’, car ils ne les sentent pas comme telles et les tiennent au contraire pour des caractéristiques précieuses; globalement, il existe une très vaste et très puissante connivence sur l’actuelle société ‘anarchique’ et sur la place qu’elle réserve au droit.⁵⁷

International law, moreover, cannot improve itself by itself and, as a technique, is neutral as to its destination. If states wanted more jurisdictional control and compulsory jurisdiction, they would create it. Nothing happened by chance and no ‘defect’ that was intentionally there was about to be remedied. It would have been hypocritical for anyone with governmental experience to claim otherwise.

It remains that the foreign legal policy of some states is not the foreign legal policy of others, and that, for example, a rougher, more primitive international legal order may be to the benefit of a minority. Of course, nothing prevented weaker states, according to Guy de Lacharrière, from at least constituting a more integrated international legal system between themselves, and to thus announce a more cosmopolitan international law.⁵⁸ Moreover, it was not impossible that the concurrence of foreign legal policies would end up upgrading international law indirectly as captured in this ambiguous formula: ‘les politiques juridiques extérieures manipulent le droit international, mais du même coup elles s’occupent de lui’.⁵⁹ Still, de Lacharrière may have ended up broadly satisfied with this vision of international law only because he understood it as having served his own political commanditaires well. But there was something almost a bit smug about the way in which he saw states as masters of their foreign legal policy, as if all states could equally afford to choose which foreign legal policy path they could adopt (consider, for example, the situation of France’s former African colonies).

As Robert Kolb has pointed out, moreover, ‘Il n’est sans doute pas innocent que G. de Lacharrière était le ressortissant d’un Etat se voyant traditionnellement comme Grande Puissance’.⁶⁰ His broad-brush, somewhat carefree vision of an instrumental international law worked better for France in the 1970s and 1980s than for others (although arguably he would have been the first to concede this). To this day, the vast majority of states are relatively weak powers who may find more succour in a strong international law than a sense that key powers have mastered the art of crafting the international law that works for them and that they are free to do the same. France itself has evolved somewhat in this direction as its influence declined. Still, it is not actually clear that this need always be the case: witness, for example, the discontent of a number of African states vis-à-vis the International Criminal Court, an institution that is at least relatively strong towards them, but on the receiving end of which they are not particularly happy to be and against whom they have waged a quite significant battle. Moreover, a commitment to a ‘strong international law’ (whatever that may mean), de Lacharrière would no doubt argue, is itself merely a form of foreign legal policy.

IV Conclusion

Guy de Lacharrière’s La politique juridique extérieure was an odd book by French standards and has remained so ever since. It has a cult following of sorts, but is not part of the canon in the teaching of French universities. It is largely unknown beyond the borders of France and does not fit within any simple category. However, it remains a singular and refreshing contribution to the study of foreign policy, one that can be recast in light of an increasingly global interest in foreign relations law. As I have argued in this paper, de Lacharrière was not interested in the conventional sense of that paradigm in that he largely ignored the constraints of domestic law on foreign policy. Partly, one is tempted to say, this is because he could. Under the Fifth Republic, the conduct of foreign policy is a singularly presidential prerogative, and the holders of the post (de Lacharrière served under de Gaulle, Pompidou and Giscard-d’Estaing) intended it to remain that way. A legal adviser in the foreign ministry would entertain few doubts about his position within a larger hierarchy of decision-making that foregrounded a certain fait du prince.

In a more than 200 page book, Guy de Lacharrière only devotes about 5 to the issue of domestic constraints.⁶¹ To the extent that La politique juridique extérieure can be construed as a book on foreign relations law, then, it is one that is largely dismissive of the role of domestic law, emphasising instead domestic politics of the highest order and an almost neo-realist insistence on the place of each state within the international system with deep conservative overtones. This does not mean of course that La politique juridique extérieure was, instead, a matter of helping and even coaxing the state to respect its international law commitments. De Lacharrière was too wedded to a model of medium-power politics to think that his role as legal adviser was to ‘represent’ international law to his government. He would have scoffed at the suggestion that he was primarily an agent of international law within a national setting.

Interestingly, however, even in his role as a legal apologist for the national interest of France, he thought quite highly of international law as something that he understood to transcend that national interest. International law might well be the sum of successful foreign legal policies, but it was at least that. Moreover, one did not, at least not always, win in foreign legal policy through sheer brute force. One needed to persuade, rally, entrench certain forms of legal reasoning, in the hope that they would catch on and would, in turn, become international law. This is an exercise that conventional international lawyers would probably recognise as coming quite close to their lived experience of the making of international law.

Foreign legal relations, then, were certainly not determined by domestic law and was certainly more than the implementation of international law. It involved an intermediary element of legal statecraft, one in which states deliberately thought about their use of international law over time, calculated what they could get away with, were often brazen about adopting contradictory positions, but much less inclined to see this as contradictory or at least problematic than a pious doctrine speaking from outside the cenacle of power. This might not seem much of a defence of international law and indeed it is one that is very much at odds with how many international lawyers – most of them academics – see its promise. Yet this is no doubt on some level intended and de Lacharrière was certainly out, on some level, for a degree of provocation.

How has the book aged, and what can it tell us today? Guy de Lacharrière’s treatment is very much based on his own experience as legal adviser. Although this surely gave him a first-row seat to observe the making of international law, it is also, in its own way, a limited vision for at least three reasons. First, just as de Lacharrière faults scholars of international law for focusing too much on judges, he is guilty of the symmetrical mistake, that of not focusing on judges at all. The same is true of de Lacharrière’s discreet dismissal of scholars of international law; as Alain Pellet once noted, it is precisely his presentation of foreign relations as largely determined by idiosyncratic national interest calculations that militates for a strong role for la doctrine.⁶² In fact, de Lacharrière’s strong emphasis on political voluntarism could only go so far from a theoretical point of view: it helped explain the formation of international law, quite possibly its implementation, but Michel Virally specifically put the former legal adviser to task for failing to explain the very authority and legitimising function of international law, which could not themselves be derived from state will.⁶³

Second, it is true that legal advisors tend to operate in a relative shadow and that his book was thus an irreplaceable testimony on a considerably important but unfairly neglected facet of international lawmaking. But international law is not exclusively a creation of states, and to the extent that it is it is hardly entirely determined by legal advisors. Indeed, in upgrading international law-making to a matter of policy, Guy de Lacharrière is always at risk of subtly overestimating the importance of lawyers’ calculations, at the expense of general policy development. Indeed, from the point of view of the mainstream of foreign relations law, de Lacharrière’s treatment is almost hubristic in its focus on the executive and the foreign ministry. It entirely neglects the role of the legislative and judicial branches in ways that are problematic now in France as in most countries. It also is oblivious to the role that civil society actors have increasingly played. La politique juridique extérieure would gain from being reread in light of these developments and understood as henceforth more embedded in domestic practices – precisely the gap that foreign relations law has identified. At any rate, there are greater dangers for the purposes of human rights or the rule of law, than states not maximising their national interest because of incoherences in their legal discourses.

Third, Guy de Lacharrière also wrote at a time of great change (decolonisation, the law of the sea) but in a context where the Cold War had frozen many options for international law. La politique juridique extérieure entirely ignores some areas such as international environmental law, international human rights law and international trade law, not to mention the law of European integration which has arguably such an impact on foreign relations law.⁶⁴ It is as if the conversations that animate these branches of international law did not exist for the once legal adviser to the French foreign ministry. This is in itself a striking contrast to some of his successors who have made a name for themselves as pleader before the European Court of Human Rights (Ronny Abraham) or judge at the International Criminal Court (Perrin de Brichambaud). Although a recent treatment by Robert Kolb takes de Lacharrière’s book as his starting point, Kolb is more sanguine about the autonomous existence of international law and its ability, without denying the incidence of foreign legal policy, to retroact on its creators and actors. Kolb goes as far as to suggest that, next to an interest-driven foreign legal policy, is a more objective variant that is geared towards the creation of stable relations and devoted to some of the ideals of an international community.⁶⁵

It is true that the two can at times seem hard to distinguish, as when France famously opposed the war in Iraq, in ways that could be understood to exalt international law and its prudential restraints or, more simply, to coincide with the country’s geopolitical interest of the moment. Champions of international law often happen to be champions of their own interest. Certainly, legal advisers in both the UK and the US have been in the spotlight for their willingness to provide excessively supple advice in relation to torture⁶⁶ or the use of force,⁶⁷ in ways that show the limits of a purely instrumental approach to international law especially when, as is increasingly the case, civil society is watching. Indeed, one of the facets of foreign legal policy-making that has changed is the willingness of various groups and individuals to challenge it ‘from below’. The days in which foreign policy was a purely regal function insulated from common politics and activism seem to be long gone. French foreign policy appears more constrained by its legal environment today and less administratively elitist than it may have appeared to de Lacharrière forty years ago. If not quite the constraint of foreign relations law or the command of international law, then, that is a further significant domestic constraint on foreign policy-making.

7 Judicial Review, Foreign Relations and Global Administrative Law The Administrative Function of Courts in Foreign Relations

Angelo Jr. Golia

I Introduction: Administrativization of Jurisdiction and Juridification of Foreign Relations

On 19 March 2019 the High Administrative Court (OVG) of North Rhine-Westphalia (Münster) issued a decision on the legality of the use of the Ramstein military air base¹ which had been made available by Germany to the US for drone strikes in Yemen². Reversing the holding of the lower court, the OVG found that the measures taken by the German government did not suffice to fulfil its positive obligations arising from the right to life. Touching on crucial diplomatic relations, this decision is remarkable for at least two reasons. First, before starting the lawsuit before German courts, the plaintiffs had already sued the US government before American federal courts, but on appeal the DC District court decided that the alleged extrajudicial killings by drone strikes were a non-justiciable political question. Second, the OVG did not only find a violation of applicable constitutional and international law, but ordered also the German government to put into place measures to ensure the legality of the use of the Ramstein base. Therefore, the OVG did not only review – unlike its US counterpart – the foreign policy of its own government, but also required it to manage/administer it in a different manner. This also means that, following the judgment, the German government was called to interact with the US in a way different from that originally planned, with a potential adverse impact on their otherwise (mostly) friendly relationship.

This case is exemplary of a general trend in contemporary western tradition systems towards the weakening of two fundamental dichotomies in their political-legal structures: that between domestic and foreign affairs; and that between judicial and executive/administrative power. Indeed, at least since the principle of separation of powers emerged as a distinctive feature of modern constitutionalism, western legal tradition has been built on the assumption that the public authorities performing executive/administrative functions and those performing judicial functions should be kept structurally distinct.³ At the same time, liberal constitutions of the eighteenth and nineteenth centuries were based on a clear divide between internal and external sovereignty,⁴ dealing with foreign relations (FRs) only in a limited and ostensibly value-neutral way. That is why they generally did not impose substantive obligations to the political branches of government in the management of FRs. Interestingly, in Locke’s construction of the separation of powers – which did not clearly distinguish between executive and judicial power – the federative power,⁵ what today is usually indicated as foreign relations power (FRP), was qualitatively different from the legislative and the executive: insofar as it could not be subject to prior legal norms, a judicial review over the exercise of federative power was conceptually inconceivable.⁶ More generally, the original theories of the rule of law and liberal constitutional models did not focus on the relationship between a single State and other States, but almost exclusively on the internal sovereignty.⁷ As a consequence, they generally framed FRs as a sort of free zone where the rule of law did not apply, characterized by judicial deference and self-restraint, and therefore by a certain ‘exceptionalism’.⁸

Both normative and factual developments of the twentieth century affected the divide between domestic and foreign affairs. From a normative perspective, post-war constitutions have established more institutional constraints on FRP.⁹ At the same time, contemporary constitutionalism and international human rights and humanitarian law gave more relevance of the legal position of the individual, strengthening material constraints legal systems – especially in western tradition jurisdictions –¹⁰ and turning some cosmopolitan values into binding legal principles, that is, result-oriented norms to be potentially applied as standards of review also in the field of FRs.¹¹ This might explain both the rise of foreign relations law (FRL) as a distinct field of legal studies and its persistently disputed disciplinary location.¹² Indeed, constitutional and international law together changed the normative relationship between law and FRs,¹³ traditionally based on a strict interpretation of the separation of powers and on axiological neutrality.¹⁴ From a more factual perspective, globalization processes established deep and unprecedented interdependencies among individuals, polities and systems at global level,¹⁵ piercing national-political boundaries and therefore weakening the factual bases underpinning the domestic/foreign dichotomy.

Turning to the divide between judicial and executive/administrative power, today even Kelsen would be surprised to see how the prediction he made in the early twentieth century while discussing the theoretical foundations of constitutional adjudication – the end of the ‘opposition’ between judicial and executive power –¹⁶ has come close to reality. Following the rise of principled (i.e. result-oriented)¹⁷ norms and relative indeterminacy in contemporary legal systems,¹⁸ and the spread of judicial review mechanisms, judicial practice has progressively internalized consequentialist and teleological approaches.¹⁹ Next to normative inputs, courts are more and more conditioned by the (expected) output of their decisions, and accommodate them to future-oriented purposes set by law in specific regulatory fields, as general or indeterminate as they may appear. Often based on balancing/proportionality techniques, domestic and international courts turn (their perception of) social expectations and policy goals, positivized in legislative, constitutional or international norms, into decisions aimed at solving and/or managing concrete issues on an ongoing basis, thus performing de facto executive/administrative functions. Therefore, rather than simple external reviewers, they increasingly act as internal participants in administrative functions. In the context of global governance, such ‘administrativization’ of the judicial function places courts in the broader set of global regulators,²⁰ thus contributing to the development and implementation of rules of coexistence, collision and cooperation among involved systems.²¹

This chapter investigates the connection between the expanding ‘administrative’ functions of courts and the ongoing normalization (i.e. juridification/judicialization) of FRs.²² To that purpose, it resorts to the analytical tools of the ‘global administrative law’ (GAL) approach, and argues that there is a factual trend towards what may be seen as a ‘global administrative law of foreign relations’, that is, a transnational legal language erratically but increasingly developed by courts in different jurisdictions, aimed at concretely managing issues falling within the scope of FRs. More specifically, the GAL approach is used, firstly, to conceptualize the function performed by courts applying FRL in the context of the increased interdependence driven by the processes of globalization and global governance. This means that, as courts increasingly participate in the ‘administration’ of FRs, an administrative conception can be added to and, to a certain extent, overlaps with other conceptions²³ of FRL. From this perspective, the trend towards the judicial ‘administration’ of FRs could be seen as the ultimate form of the – admittedly precarious and reversible – normalization of FRL. Secondly, the GAL approach is here used to categorize judicial rulings, according to the type of norms they implement or develop in the context of FRL. Here, it is possible to conceptually distinguish between norms and/or standards implemented or developed in relation to the FRs conduct of the political branches of the jurisdiction to which a given court belongs (‘review norms’); and norms and/or standards implemented or developed to manage interactions with other jurisdictions or legal systems affecting FRs (‘interaction norms’).

Section II briefly recalls the main features of FRL (subsection II.A) and GAL (subsection II.B), mapping the analytical bases of the chapter, their conceptual assumptions, and the main challenges they face. Based on an a-systematic survey, Section III outlines a tentative taxonomy of the forms that the judicial practice takes in developing an embryonic ‘global administrative law of foreign relations.’ In particular, subsection III.A focuses on the ‘review norms’, while subsection III.B on the ‘interaction norms’. Section IV concludes, summarizing the core claims and highlighting, from a more normative perspective, the potential risks of the administrativization of FRs, which may also cast doubts on the general value of GAL as a normative endeavor.

II Bringing Together FRL and GAL

A The Struggles of FRL with its Scope, Sources and Functions

FRL intersects two axes of constitutional legal theory: the relationship between domestic law and international/transnational legal systems;²⁴ and that between judicial and political branches in legal systems characterized by the constitutionalization of value choices.²⁵ However, although it is by now relatively well-established as a field of studies (at least in common law jurisdictions), FRL still struggles with some foundational issues,²⁶ concerning its scope, sources and functions.

Concerning its scope, at least two conceptions of FRL may be individuated. The first one, based on a strict dichotomy domestic/foreign, limits FRL to three macro-areas: treaty-making, -development and -termination; international and supranational integration; and use of military force.²⁷ A broader conception, based on a functional understanding of FRL, focuses on all the legal norms affecting the relations of a nation with the rest of the world. Under this broader conception, FRL would for example include the conflict of laws of each nation,²⁸ and in some cases even fields normally regarded as purely internal. A US Supreme Court decision concerning the interpretation of federal copyright law²⁹ may matter to manufacturers and consumers both in the US and throughout the world, with economic impacts worth billions, and potentially generating significant diplomatic frictions.³⁰ Likewise, a judgment of the German Federal Constitutional Court (BVerfG), holding that a specific statutory design for the surveillance powers of intelligence agencies violate the Basic Law, and forbidding the transfer of data thus obtained to other intelligence services,³¹ may undermine the diplomatic position of the German government. Similarly, constitutional provisions and the related judicial rulings concerning public ownership of natural resources and property rights of corporations constitute examples of norms functionally falling withing FRL – especially from a ‘peripheral perspective’.³² In all these cases constitutional courts inevitably decide also on FRs issues, as in the age of globalization FRs are virtually everywhere. Therefore, the struggles of FRL scholarship with the definition of its own analytical scope derive also from the difficulty to be coextensive with its factual scope.³³

Regarding its sources, FRL has been traditionally conceived as a branch of domestic systems,³⁴ namely of their constitutional and administrative law.³⁵ However, following the normative developments occurred during the twentieth century, FRL has progressively come to include international law,³⁶ to the extent this latter applies to a specific domestic jurisdiction, or imposes on States a certain conduct in the management of their FRs, or directly regulates the conduct of individuals. Importantly, the influence of international law sources contributes to making FRL at least in part ‘transnational’, insofar as courts in different jurisdictions, which apply the same rules of international law or decide on similar issues concerning FRs, increasingly develop comparable and/or equivalent – albeit not identical – standards of adjudication,³⁷ also through reciprocal influence and cross-fertilization.³⁸

This last aspect is linked to the functions attributed to FRL. Campbell McLachlan has listed five conceptions of the functions performed by FRL, namely the exclusionary, the internationalist, the constitutional, the diplomatic and the allocative.³⁹ While not necessarily mutually exclusive, these conceptions have different ideological roots, and potentially result in conflicting implementations by institutional actors, especially courts. Put differently: in applying FRL or in adjudicating issues related to FRs, judicial bodies may develop different understandings of their own role and the results to pursue, also depending on the underlying function attributed to FRL. However, none of these conceptions as such captures the idea that FRL has come to provide concrete legal standards – potentially justiciable by courts – to ‘manage’ FRs on an ongoing basis.

In the light of such struggles, it seems that no single approach accounts in a comprehensive manner for some key elements of FRL, namely the mismatch between its analytical and factual scope; its ‘transnationality’; its potentially ‘administrative’ function; and, finally, the active – be it unifying or fragmenting – role played by judicial bodies in that context.

B GAL As an Analytical Approach to FRL

Giving an accurate idea of GAL in few words is not easy. It has emerged together with other approaches in the galaxy of global law and postnational constitutionalism,⁴⁰ and it does not indicate a full-fledged legal system in a traditional sense.⁴¹ Rather, it can be broken down into two main parts.

Firstly, GAL stands as an analytical/descriptive tool, referring to a factual⁴² trend whereby a set of procedural and substantive norms – inter alia review, transparency, reason-giving, participation, audiatur altera pars, legal accountability and liability of administrative authority – has been increasingly developed and implemented, either formally or informally, by ‘global administrative bodies’ (GABs) all around the world and at different governance levels, including the domestic one. GAL focuses on the ‘mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies’.⁴³ It highlights that, when confronted with functionally differentiated issues of global concern (corruption, competition, banking supervision, terrorism, food safety, etc.), GABs of different jurisdictions and governance levels increasingly interact, often working as (either formal or informal) transnational networks. From this standpoint, GAL claims that ‘much of the global governance can be understood in administrative terms, as global administration that operates in a “global administrative space” … in which the strict dichotomy between domestic and international has largely broken down’.⁴⁴ Therefore, the label ‘GAL’ refers to an emerging form of transnational law, whose norms are implemented and developed by sub- and non-state administrative institutions, often with little or no involvement of political branches of governments.

Secondly, GAL embodies the normative stance of a scholarly movement towards such practices. In other words, the GAL approach does not only outline the factual implementation of a certain set of norms by administrative bodies, but also supports their spread and strengthening. It also argues that these norms and networked modes of action help to order the structures of global governance and achieve results in fields of common concern, by also strengthening their legitimacy and cooperation, and decreasing conflicts and inconsistencies among involved actors/systems. From this perspective, GABs would be also incentivized to act as transnational networks. Overall, the GAL approach claims to retains a soft normative value, aiming to bridge a relatively little gap between an ‘Is’ and an ‘Ought’ at global level, by expanding guarantees in administrative action, in fields where they have not been established yet. By these means, the GAL approach is – or claims to be – less ambitious than other ‘constitutionalist’ approaches to global law,⁴⁵ as it does not engage directly with the issue of unitary axiological framework(s) and global democracy.

The GAL approach deals with courts in two different yet linked ways.⁴⁶ First, they are regarded as reviewing bodies, checking the respect by GABs of the norms aimed at keeping them accountable and increasing their legitimacy. Therefore, courts implement and develop review norms on administrative action. Secondly, they are regarded as GABs themselves, especially when exercising substituting functions or working as transnational networks. In this latter case, the standards developed or implemented by courts often take the form of ‘interaction norms’ (margin-of-appreciation; Solange-like doctrines; subsidiarity; deference/comity doctrines), and are generated by courts to manage actual or virtual clashes among the systems where they operate respectively.⁴⁷ One of the merits of GAL as an analytical tool has been to highlight that, whether they act as reviewers of the action of GABs or as GABs themselves, courts take part of the regulation/administration of global governance.⁴⁸ Another analytical contribution of GAL is to read the interactions and reciprocal influences among courts as networks. Indeed, judicial networks, just like other information, harmonization and enforcement networks,⁴⁹ may promote convergence, compliance and cooperation among involved systems, and they are called upon to manage clashes emerging from globalization processes.⁵⁰

In the light of these considerations, the GAL approach may provide a useful – although not exclusive – analytical/descriptive framework, at the same time accounting for the elusive scope of FRL, its ‘transnationality’, its ‘administrative’ function, and the role played by courts in managing coordination and/or fragmentation among systems. In other words, the GAL approach constitutes a viable tool to frame and understand two major tensions underlying FRL: that between its still somehow persistent ‘exceptionalism’ and ongoing/erratic process of normalization, where the aspiration to manage even FRs according to material legal standards meets the obstacles of the Realpolitik; and that between its domestic and international dimensions, where the aspiration to provide global legal standards meets the obstacles of different sources of legitimation and modes of lawmaking. The GAL approach crosscuts these tensions and may potentially offer a useful conceptual framework. Building on this core insight, the next section brings the argument further and, based on the GAL framework, outlines a tentative taxonomy of the decisions of courts ‘administering’ FRs.

III A (Tentative) Taxonomy of a ‘Global Administrative Law of FRs’

Drawing a clear-cut taxonomy of the decisions taken by domestic courts in FRs matters is problematic, considering the institutional and procedural variances among different systems of judicial review. However, based on the GAL framework,⁵¹ one may distinguish between (1) norms involving the application of certain standards of review on FRs acts, or of acts otherwise affecting FRs (‘review norms’); (2) norms affecting the coordination/cooperation with other systems in FRs matters (‘interaction norms’). Both categories may in turn be subcategorized, based on the procedural or substantive grounds. Such taxonomy is summarized above in Table 7.1.

Table 7.1 Taxonomy of the Judicial Administration of Foreign Relations

	review of FRs acts/conducts (‘review norms’)	interaction with other systems in FRs (‘interaction norms’)
judicial procedure grounds	Access/standing Deference to executive’sinterpretation/findings Justiciability doctrines (…)	International comity Extraterritoriality Self-execution doctrines (…)
substantive grounds	Legality/constitutionality Human rights Proportionality/reasonableness Participation/representation (…)	Evaluation of other systems’respect of human rights (…)

To be sure, these categories should be seen only as a general descriptive account of the way courts generally frame the arguments underpinning their decisions in FRs matters, and may in fact overlap. For example, reasonableness/proportionality arguments are categorized sub the ‘review norms’ category, as they are mostly used as a benchmark to review domestic acts, but may often explicitly enter into considerations related to comity. Similarly, decisions based on justiciability doctrines (e.g. the British ‘foreign act of State’) may also give rise to interaction norms. More generally, such taxonomy does not aspire to establish strong normative divides, especially considering that the same decision may often generate uno actu both review and interaction norms.

A Review Norms

The first category, comprising the review norms implemented and/or developed on the issue as to whether to decide, includes rules on the access/standing of private parties, the deference towards executive (either on the interpretation of relevant law or on factual findings), the justiciability of the question, etc. In this field, for the last decades domestic judicial practice has been heading – slowly, contradictorily, but constantly – towards the expansion of the courts’ competence to adjudicate FRs issues, both in common law and in civil law jurisdictions. More importantly, courts seem increasingly to be reducing the use and scope of ‘exceptional’ doctrines of nonjusticiability (such as the US political question doctrine) and/or of deference to executives’ interpretations/findings, often under the influence of international human rights law.⁵² Indeed, even when they accord such deference, they increasingly give their own legal justifications as to the reasons for doing so (e.g. executive expertise).

In civil law jurisdictions, Germany is probably the most prominent example of rejection of doctrines of judicial abdication in FRs matters, even for cases involving the deployment of military force.⁵³ Helped by their specific cultural and institutional environment, since at least the 1954 Status of the Saar case,⁵⁴ through the 1983 Pershing II case,⁵⁵ up to the decision of the OVG Münster on the use of the Ramstein base, German courts have consistently rejected doctrines of intrinsic nonjusticiability,⁵⁶ and rather tend slightly to lower the intensity of scrutiny of the merits case.⁵⁷

Contrary to some scholarly suggestions,⁵⁸ even common law jurisdictions, where the influence of ‘foreign affairs exceptionalism’ is traditionally stronger, seem to participate in this trend. Importantly, in its most recent case law the US Supreme Court has increasingly rejected the use of the so-called Chevron approach in FRs matters. Such approach, intrinsically linked to the autonomous political legitimation of the executive branch in US government, compels federal courts to defer to a federal agency’s interpretation of an ambiguous statute that Congress delegated to the agency to administer, and results in an almost exclusive abdication to government’s agencies in interpreting the statutes.⁵⁹ Similarly, US federal courts are gradually reducing the application of the political question doctrine, even in key FRs cases such as Zivotofsky,⁶⁰ the Guantanamo cases⁶¹ and, more recently, Al Shimari,⁶² concerning alleged acts of torture committed by a private military contractor’s employees towards Abu Ghraib prisoners, which vacated the lower court’s dismissal based on the political question doctrine.

Other examples of this trend may be found in the case law of the Israeli Supreme Court starting from the beginning of the 1980s,⁶³ in the practice of the Canadian Supreme Court,⁶⁴ as well as in India,⁶⁵ UK,⁶⁶ South Africa⁶⁷ and even Russia.⁶⁸ More generally, when courts declare inadmissible a question related to FRs, they increasingly resort to the ‘ordinary’ tools provided by judicial procedure, such as standing requirements, although even the evolutive interpretation of these latter seems increasingly to permit a greater access of private individuals to litigate FRs issues.⁶⁹ In particular, the comparison between Germany and the US shows that, while the respective practice still differs as for the underlying legal culture and the concrete results, there is a sort of progressive alignment as for the restriction of ‘exceptional’ doctrines of judicial abdication.

These insights support the claim that the area of judicial reach over FRs is expanding. Such ‘normalization’ is a necessary precondition for claiming that the management of FRs can be conceived in terms of (co-)administration by courts. Indeed, insofar as judicial bodies increasingly address the merits of FRs cases, or declare them inadmissible based on ordinary procedural standards, they apply the same norms as for any other executive action. At the same time, the possibilities for courts to adjudicate and even ‘administer’ FRs issues grow.

Concerning the legal standards used on the merits, that is, the norms concerning how to decide on FRs issues, it is also possible to identify an expanding trend. Indeed, national courts – in the different ways permitted by their respective domestic law – increasingly use the same substantive criteria of evaluation as for ordinary domestic issues. This trend, which varies in context and intensity, does not concern only the application of constitutional/legislative norms specifically related to FRs (e.g., the content of an agreement or the process of treaty-making) which in some cases may lead to the invalidation of the law implementing a treaty, but also the use of constitutional general principles. These latter include both the respect of constitutional rights, often interpreted in the light of international law, and general clauses and standards such as reasonableness and proportionality. Major examples pointing to this direction may be drawn from German,⁷⁰ Italian⁷¹ and US case law, as well as from the European Court of Justice (ECJ).⁷²

Importantly, US federal courts applied proportionality/balancing techniques in issuing (or in staying) preliminary injunctions barring the enforcement of President Trump’s ‘travel bans’.⁷³ This application is particularly significant, especially when compared to the traditional ‘plenary power doctrine’.⁷⁴ Similar developments may be observed in the case law on the treatment of enemy combatants in the ‘war on terror’.⁷⁵

In this context, and even though it did not resort to balancing techniques, the decision of the OVG Münster is particularly interesting. Indeed, based on a typical result-oriented norm – the obligation to protect the life and physical integrity deriving from article 2(2) of the German Basic Law – it held that, as the legality of the US strikes was doubtful under international humanitarian law, the right to life of the claimants might have been violated. This triggered two obligations of the German authorities: (1) to make sure, on the basis of the legal assessment of the court, whether the practice of US strikes in Yemen region is in conformity with international law as it stands – to the extent that the German territory is involved; and (2) to take measures deemed appropriate in order to work towards compliance with international law.

Another interesting instance is the Urgenda saga, where Dutch courts ruled that the government owes a duty of care to its citizens to provide protection against the risks posed by climate change.⁷⁶ Based on general principles of domestic civil law, reinterpreted in the light of the UN and EU climate agreements, along with international law principles and climate science, Dutch courts ordered the government to revise its policies and ensure that by the end of 2020 carbon dioxide emissions are reduced by 25 percent compared to 1990 levels, that is, more than that initially planned by the government in the context of the Paris agreement. Also in this case, based on result-oriented domestic and international norms (principle of duty of care plus reduction of greenhouse emissions), judicial bodies reviewed the legality of measures adopted by political branches, and indicated the way to manage (‘administer’) a given issue, namely climate change. This also implies that the court co-determined, at least indirectly, the concrete implementation of the Netherlands’ international obligations. Although not immediately connected with IRs stricto sensu, the Urgenda saga is highly significant to our purposes: by judicially restricting the executive’s discretion on the concrete implementation of international obligations, Dutch courts potentially set an important precedent also in fields different from climate justice, as they codetermined the possible options on the design of foreign policy.

A third exemplary case is the 2019 SADC Tribunal judgment of the South African Constitutional Court,⁷⁷ concerning the decision of the Southern African Development Community (SADC) heads of State and Government to remove the right of individual access to the SADC Tribunal. Approached by the Law Society of South Africa, the Court found that the executive’s participation in the ‘decision-making process and his own decision to suspend the operations’ of the Tribunal to be unconstitutional, unlawful and irrational.⁷⁸ The judgment also found that the signing of the 2014 Protocol was unconstitutional, unlawful and irrational and, as a result, ordered the President to withdraw his signature, greatly restricting the executive’s discretion. Importantly, the Court based its reasoning on the fact that the 2014 Protocol denied citizens of South Africa and other SADC countries the access to justice at a regional level, despite the fact that such individual access is not per se imposed by any international law obligation, not even at regional level.⁷⁹

A final remarkable example is the judgment C-252/19 of the Colombian constitutional court.⁸⁰ Evaluating the compatibility with the domestic constitution of a bilateral investment treaty (BIT) signed with France, the court declared it ‘conditionally constitutional’, that is, only under specific conditions. Turning away from previous approaches,⁸¹ the Colombian court imposed to the executive branch the negotiation and adoption of a joint interpretive note, concerning the meaning to attribute to several clauses of the BIT. Also in this case, a domestic court did not merely review the legality of executive’s conduct in FRs – namely, the exercise of treaty-making power – but also imposed to take specific measures and, therefore, actively participated in the concrete management/administration of Colombia’s FRs.

In other cases, judicial review of FRs conducts has come to impose participatory/procedural rights of parliaments or other actors, even when relevant domestic law does not explicitly provide for or is unclear on that point.⁸² In this regard, however, there are still significant differences between the US and other – notably European – jurisdictions. Undeniably, a field where the US political question doctrine remains almost untouchable concerns the choice on the way to internally implement or to withdraw from international agreements.⁸³

On the other side of the ocean, the UK Supreme Court recently held that the government was required to obtain authorization from parliament before it could initiate withdrawal from the EU.⁸⁴ Although British scholarship has not reached a consensus as to whether the decision is in continuity with UK constitutional tradition,⁸⁵ it was mainly based on the principle of parliamentary sovereignty. However, it also relied on the principle that democratic consent mediated by (constitutional) law is necessary to take the most fundamental FRs decisions affecting the rights of British citizens, and, more generally, involving ‘fundamental change in the constitutional arrangements’. The UK Supreme Court seemed thus to overcome the 1971 ruling concerning the British accession to the European Community, stating that it was beyond the jurisdiction of the courts to perform a judicial review on Parliament’s rightful exercise of its powers.⁸⁶ Even more importantly, following such judgment the British parliament passed legislation empowering the Prime Minister to give to the EU Council the notice for starting negotiations for the UK’s withdrawal from the EU⁸⁷ and requiring Parliamentary approval of the outcome of the government’s negotiations with the EU under article 50(2) of the TEU.⁸⁸ It is therefore fair to say that, although it cannot be regarded as a direct judicialization of FRs, the high instability due to the parliamentary involvement in the Brexit negotiations is also and at least indirectly a result of that decision, that is, that of the imposition by a court of a procedural requirement on the management of a FRs issue.

Similar decisions were taken by the Irish Supreme Court, ruling that any new provision amending the EC/EU treaties which alters ‘the essential scope or objectives’ of the EC/EU requires the intervention of the people to be constitutionally valid;⁸⁹ and the BVerfG which, in its Lisbon treaty ruling, alluded to the possibility that the German people as constituent power adheres to a future European federal state through referendum, despite the fact that such institute is not foreseen by the German Basic Law.⁹⁰ In this regard, it worth recalling that some continental scholars have even taken a step further, looking for legal bases to entitle foreign subjects to challenge a State’s foreign policy.⁹¹

Outside the European context, the major example can probably be found in South Africa. In Democratic Alliance v. Minister of International Relations and Cooperation,⁹² the High Court of Gauteng was faced with a question similar to that decided by the UK Supreme Court in Miller, that is, the executive’s withdrawal from the Rome Statute, an international treaty ratified and domesticated by the parliament, without prior parliamentary approval. Although the question is not directly addressed by the South African Constitution, in 2017 the Court, stressing the importance of public participation when withdrawing from treaties,⁹³ held that Section 231(2) of the Constitution, requiring parliamentary approval for treaties subject to ratification, also requires by implication parliamentary consent to withdraw from such treaties. Therefore, the notice of withdrawal was unconstitutional and invalid.

More generally, some scholars suggest that FRs issues are best addressed by judicial bodies through traditional balancing/proportionality standards of review.⁹⁴ Obviously, in deciding which values/rights to balance, and the ‘weight’ to give to each of them, courts inevitably exercise some discretion, which cannot but impact on a State’s FRs. Also from this perspective, they might increasingly participate in the management/administration of FRs.

B Interaction Norms

This subsection looks at the trends concerning the interaction norms, implemented and/or developed to manage interactions with other jurisdictions or legal systems affecting FRs. Similarly to the review norms, courts may base their rulings on either procedural or substantive grounds, but such subcategorization can be even more blurred.

Such norms include the application of ‘(foreign) act of State’ and sovereign immunity doctrines – limiting the circumstances under which courts examine the validity of foreign governments acts and the responsibility of sovereign actors – as well as other doctrines of judicial abstention (international comity, forum non conveniens, margin-of-appreciation, subsidiarity, Solange, controlimiti, etc.) preventing judges from evaluating the merits of a claim or grant recognition/enforcement of outer legal sources.

In particular, in common law jurisdictions – especially in the US – courts seem to explicitly take into consideration, next to strictly legal elements, lato sensu political elements.⁹⁵ While such attitude contributes to make their decisions more understandable, it also affects their capacity to set clear and foreseeable standards, and has been generally criticized for its unpredictability.⁹⁶ In European jurisdictions, where the choice-of-law rules are generally seen as less flexible and more predictable,⁹⁷ such elements are hidden in the folds, so to say, of legally ‘pure’ argumentations.

This attitude is quite apparent in the evolution of the US ‘act of State’ doctrine, whose scope⁹⁸ has been narrowed since 1990 by the Supreme Court,⁹⁹ limiting the case-by-case balancing in deciding whether to apply it or not.¹⁰⁰ More generally, US courts increasingly adopt reasonableness standards in deciding whether to extend the reach of domestic law or not.¹⁰¹ Importantly, this ‘prescriptive comity’, consisting in the respect sovereign nations afford each other by limiting the reach of their laws, does not totally coincide with the ‘judicial comity’, whereby judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere, as it happens in the forum non conveniens doctrine.¹⁰² Similarly, in the field of extraterritorial jurisdiction, it is possible to observe an – apparently paradoxical – double movement toward global coordination: while US courts seem to progressively reduce the extraterritorial reach of their jurisdiction when the legal text do not explicitly provide otherwise,¹⁰³ the European multilevel system seems to progressively expand its reach.¹⁰⁴

Here, two points are worth underlining. First, in many instances courts, especially in the US, take into consideration the foreign policy dimension in order to decide a case or to interpret relevant laws, often against the positions of executive branches. This is quite apparent in the Alien Tort Statute (ATS) case law,¹⁰⁵ where the Court explicitly or implicitly decided the cases based on its own assessment of how to avoid diplomatic frictions. Second, reasonableness and proportionality may be applied not only to evaluate a FRs act as such, but also to extend or narrow the reach of a court’s own legal system. Consequently, substantive evaluations affect procedural decisions, which only apparently do not concern the merits of a case. Indeed, in the context of decisions related to interaction norms, there is often a silent shift towards substantive standards of review, hidden in the fabric of procedural rulings.¹⁰⁶

This is quite apparent when courts, in deciding whether to extend their jurisdiction extraterritorially or not, refer to the respect of human rights and/or justice in the system which would be competent. For example, before the ECJ judgment Owusu ruled that Regulation (EC) 44/2001 prevented its application, this was the case for the British forum non conveniens doctrine. In determining ‘the more appropriate forum’, British courts took into account the interests of the parties and the nature of the subject matter, and made a determination as to whether another forum was more appropriate than England. Further, they inquired as to whether ‘substantive justice’ would be achieved in that other forum. This second part distinguished the English test from the US test, where ‘justice’ is not such an explicit element.¹⁰⁷ Similar considerations influenced the Pinochet case, where the House of Lords held that (1) allegations of torture and hostage taking ‘pierced the veil’ of the personal jurisdictional immunity granted of Heads of State, codified in articles 28, 29 and 31 of the Vienna Convention of Diplomatic Relations (and in part II of the 1978 State Immunity Act); (2) the Crown act of state doctrine was inapplicable, as Parliament, by enacting section 134(1) of the 1988 Criminal Justice Act defining torture and section 1(1) of the 1982 Taking of Hostages Act, had shown that the conduct with which Pinochet was charged was a justiciable matter before the English courts.¹⁰⁸ More recently, similar arguments were the basis for the Belhaj decision,¹⁰⁹ holding that the UK government could not rely on sovereign immunity and foreign act of state to escape claims in the two cases alleging UK involvement in breaches of human rights by foreign governments in Libya.¹¹⁰

In an opposite and equal direction, domestic courts increasingly use balancing techniques, reasonableness and human rights in granting recognition or enforcement to foreign sources into domestic systems, or in granting self-executing status to international law norms. This field is notoriously explored in the European continental scholarship, as a consequence of the EU integration process. EU member States, Germany and Italy in particular, have developed similar – though not coincident – doctrines of constitutional tolerance/resistance (Solange, controlimiti), which accord or deny the ‘entrance’ of external legal sources under certain circumstances, and have contributed to the reflexive evolution of the EU system towards greater political integration and respect of fundamental rights.

These models of constitutional tolerance/resistance/jurisgeneration are increasingly invoked and applied outside the intra-EU context, as a general template to manage inter-systemic collisions.¹¹¹ The most famous example probably remains the Kadi saga, comprising several decisions whereby the ECJ annulled EU Regulations implementing UN Security Council resolutions imposing restrictive measures directed against persons and entities associated with Al-Qaeda, for the violation of the affected persons’ procedural rights, such as the right to be heard and the requirement for an adversarial process. As a result, a source of binding international law was denied entrance and implementation into the EU legal system.¹¹²

A significant example of this model and its potential risks is judgment no. 238/2014 of the Italian constitutional court. Although it is not possible to provide the full procedural background, this ruling held that the norm of customary international law (CIL) concerning the jurisdictional immunity of States for acta iure imperii, as ascertained by the ICJ in 2012 –¹¹³ was incompatible with the ‘supreme principles’ of the constitution, when applied to exclude Italian civil jurisdiction for war crimes committed by the Third Reich.¹¹⁴ In particular, the Italian court recognized the ICJ’s monopoly over the interpretation of CIL, proclaiming its incompetence to reassess the existence of the rule on the State immunity, and how it relates to the right to jurisdictional remedy. Secondly, claiming to adopt a balancing approach,¹¹⁵ it weighted the values that – in its opinion – were at stake: the total ineffectiveness of the right to an effective jurisdictional remedy, under articles 24 of the Italian Constitution and 6 ECHR; and the State immunity recognized by international law, in this case shielding the commission of war crimes. Thirdly, it denied the ‘entrance’ of the CIL norm into the domestic system, thus preventing ordinary courts from implementing it.

Importantly, and first, the court at least formally accorded deference to the ICJ. As some scholars argued,¹¹⁶ the court could have autonomously reassessed the scope of the CIL norm on State immunity, but rather claimed not to be allowed to do so. However, in this case ‘judicial comity’ did not lead to ‘legal comity’,¹¹⁷ as it provoked a diplomatic deadlock. Secondly, the court took a position clearly in conflict with the Italian parliament and government.¹¹⁸ Indeed, in its balancing it did not take into account, or did not give much weight, to other possibly involved values, for example the ‘peace among nations’ and the interest to friendly relationships among sovereign entities (article 11). Regardless of its legal form, this relatively discretional choice had a political impact. Thirdly, the court explicitly had a ‘iurisgenerative’ intent, that is, the purpose of inducing changes in international law, namely the scope of the State immunity norm,¹¹⁹ and also aimed to compel the Italian government to promote further negotiations with Germany. Fourthly, in order to support its argument and the final outcome, the court explicitly relied on the ECJ’s Kadi case law, thus trying to present its decision so as to be coherent with a broader ‘transnational’ judicial consensus.¹²⁰ Finally, the subsequent practice of lower courts has proved crucial in somehow managing and de-escalating the resulting diplomatic deadlock, either when they formulated settlement proposals with the German government;¹²¹ or when they found that the rule on State immunity still barred the exercise of executive jurisdiction, thus avoiding the seizure of German assets in Italy.¹²²

From a more general perspective, this example is significant, as it concerns the development by a domestic court of norms regulating the relationships between an external legal system (in this case, CIL) with the domestic one. Further, it demonstrates that, while it is generally true that the ‘“judge judging the judge” activity heavily depends on the political influence and diplomatic relations between systems’,¹²³ in many instances judicial rulings may run contrary to otherwise friendly relations and the reciprocal trust.

The scenario arisen from the judgment no. 238/2014 is not an isolated case but, as courts increasingly ‘administer’ FRs, reflects a potentially recurring scenario. Here again, and although it did not involve any interaction between judicial bodies, the decision of the OVG Münster on the Ramstein base provides a significant example. Indeed, insofar as it raised doubts on the legality of the strikes conducted through the Ramstein base by the US government, and imposed the German government to take appropriate measures in that regard, such decision generated also interaction norms, affecting the coordination/cooperation with other systems in FRs matters. This, however, restricted greatly the diplomatic room of maneuver of Germany, and seem to have produced a diplomatic deadlock with the US, a key strategic ally.¹²⁴

In yet other cases, political influence and economic interests, as well as power grab considerations,¹²⁵ rather than ‘humanity’, might play a more direct role into the development of interaction norms. This may be the case, for example, of the use of self-executing doctrines by the US Supreme Court towards the rulings of the ICJ,¹²⁶ and by the ECJ in the field of GATT, WTO and international economic agreements.¹²⁷ Similarly, US courts restricted the extraterritorial reach mainly in the field of human rights protection,¹²⁸ but narrowed it only slightly as regards its instruments of (direct or indirect) government of global economy, often with the result to shield US companies from lawsuits brought by foreign nationals.¹²⁹ In these instances, domestic courts, in denying the direct effect of international binding norms, seem more concerned with preserving their domestic authority as holders of the ‘final say’, or with guaranteeing domestic political and/or economic interests.

IV Conclusion: The Administrative Conception of FRL, its ‘Transnationality’ and Potential Risks

The necessarily a-systematic survey conducted above, based on the GAL analytical framework, seems to provide some answers to the persisting struggles of FRL scholarship. First, the GAL approach confirms the necessity to look at FRL in functional terms. At a time when the divide between foreign and domestic affairs has become almost impalpable, the (study of the) law of FRs cannot be limited to the traditional areas of treaty-making; international and supranational integration; and use of military force. To have a realistic understanding of the law/FRs relationship, the scope of FRL (and its scholarship) must include the legal fields functionally affecting FRs. Although admittedly in the age of globalization FRs are virtually everywhere, the GAL approach provides reasons to expand the scope of FRL, so as to include at least all the legal fields that somehow separate the internal from the external and mediate the inward reception of international law into the domestic legal system.¹³⁰ In this regard, looking at FRL through the lenses of GAL offers another conception of (the function of) FRL in the context of legal-political globalization: the administrative one. Such conception captures the idea that the sources of FRL – be they domestic or international – provide relevant institutional actors with concrete goals and results to accomplish in the context of FRs, as well as substantive and procedural standards to ‘manage’ FRs, whose respect can be in turn reviewed by judicial bodies.

The functional understanding of FRL makes apparent another key element brought out by the GAL approach: the role of ‘global regulators’ of courts, in a domain where their influence is still underestimated.¹³¹ The expansion of the judicial reach in FRs is not just quantitative, as more and more FRs questions are adjudicated by courts on the merits; but also qualitative, as judicial rulings affect the concrete management/‘administration’ of FRs. Courts – either voluntarily or involuntarily, either directly or indirectly – increasingly participate in the exercise of FRP, as they contribute to set or change the legal patters that the political branches must follow, also prospectively. This holds true even when courts adhere to the position of political branches: as courts step into the FRs arena, for analytical purposes it does not change much whether their assessments coincide to that of the executives and parliaments or not. For this reason, in highlighting the role played of courts, the GAL approach could also strengthen their self-awareness and responsiveness, just as for other GABs.

The analytical tools provided by GAL proved also useful to assess the emerging ‘transnationality’ in FRL, in two respects at least. Firstly, in adjudicating FRs questions judicial bodies often apply a sort of ‘patchwork’ of domestic and international legal sources.¹³² Secondly, courts seem increasingly to develop comparable and/or equivalent argumentative models and standards of review, sometimes even explicitly recognizing reciprocal influence.¹³³ However, the degree of formalization of such ‘common language’ is probably fated to remain underdeveloped, when compared to other functionally differentiated fields which constitute the usual focus of GAL studies. Indeed, next to other factors which make judicial networks less formalized than others, in FRs matters judiciaries are ‘torn between, on the one hand, [their] loyalty to the international and national rule of law and, on the other, [their] allegiance to national or organisational interests’.¹³⁴

This point leads to a final consideration. The survey showed that the expansion of the judicial reach on FRs questions often ends up in further obstacles to the coordination of conflicting systems and to the ordering of global governance. Even the use of human rights or other substantive standards can lead to greater disorder, especially because courts’ decisions highly differ as regards their hierarchization. The administrativization of FRs – a complex phenomenon driven, among other factors, by the greater relevance to the legal position of the individual, the spread of (constitutional) result-oriented norms, and a procedural turn in FRL – does not always imply greater coordination among systems, but can rather bring more disorder, conflict and unpredictability. The Miller judgment of the UK Supreme Court, the ItCC judgment no. 238/2014 and the ruling of the OVG Münster on the Ramstein base – the very case with which we opened this chapter – are glaring examples of the risks linked to this trend. More generally, this consideration puts somehow into question the normative aspirations of GAL, insofar as it advocates for the expansion of ‘administrative’ norms and judicial control on the exercise of power in transnational arenas, with the goal to decrease conflicts and inconsistencies among involved actors/systems, and increase their legitimacy. Although a critical assessment of such normative aspirations lies outside the scope this chapter, the administrativization of FRs, and the role played by courts in that context, constitute a hard test for the capacity of the GAL project – not only to describe, but also – to order the structures of global governance, and opens new venues for further research in the vast field of the relationship between law, FRs and global governance.